UNITED STATES MERIT SYSTEMS PROTECTION BOARD

A Report to the President and the Congress of the United States 

by the U.S. Merit Systems Protection Board

AUGUST 2014

VETERAN HIRING IN THE 

CIVIL SERVICE:

Practices and Perceptions

U.S. MERIT SYSTEMS PROTECTION BOARD

1615 M Street, NW

Washington, DC 20419-0001

The President

President of the Senate

Speaker of the House of Representatives

Dear Sirs:

In accordance with the requirements of 5 U.S.C. § 1204(a)(3), it is my honor to submit this U.S. Merit 

Systems Protection Board (“MSPB”) report, Veteran Hiring in the Civil Service: Practices and Perceptions. 

This report describes the laws and regulations for hiring veterans into the civil service and discusses Federal 

employees’ perceptions about such hiring. Furthermore, it explains the history behind—and implementation 

of—a law that was designed to ensure that the hiring of recently retired service members as civilian employees 

of the Department of Defense (DoD) is based on merit and not favoritism. 

The laws and regulations regarding the preferences in hiring that can or must be given to veterans 

and certain family members are extremely complicated. For example, the preferences vary by the specific 

circumstances of the veterans—or their family members—and the hiring authorities being used. These 

laws and regulations invite misunderstandings, confusion, perceptions of wrongdoing, and possibly actual 

wrongdoing—whether intentional or inadvertent.

In an MSPB survey, 6.5 percent of respondents indicated that they had observed inappropriate favoritism 

towards veterans while 4.5 percent reported observing a knowing violation of veterans’ preference rights. The 

survey data showed that employees are less likely to be engaged and more likely to want to leave their agencies 

if they report having observed either of these two types of conduct.

Title 5, section 3326, which applies only to DoD, requires that certain measures be taken before hiring 

a service member within 180 days after his or her military retirement. The law does not preclude the hiring 

of such veterans in this period, but it instructs the U.S. Office of Personnel Management to ensure that the 

hiring is based on merit, and specifies the means by which to achieve that goal. This oversight has not been 

in place since the declaration of a national emergency in 2001 and there is no record of oversight prior to 

that event. The absence of oversight may be responsible for some perceptions that the hiring system is being 

inappropriately manipulated and that advancement based on merit is not available to career employees. This 

report discusses the extent of—and basis for—those perceptions and recommends reinstatement of the review 

process. 

I believe that you will find this report useful as you consider issues affecting the Federal Government’s 

ability to select and maintain a high-quality workforce that includes men and women who have honorably 

served our Nation in uniform.

Respectfully,

Susan Tsui Grundmann 

THE CHAIRMAN

U.S. Merit Systems Protection Board

Susan Tsui Grundmann, Chairman

Anne M. Wagner, Vice Chairman

Mark A. Robbins, Member

Office of Policy and Evaluation

Director

James M. Read

Deputy Director

James J. Tsugawa

Project Manager

Sharon Roth

Survey Administrator

J. Peter Leeds, Ph.D.

Table of Contents

Executive Summary ...................................................................................................................................................................... i

Chapter One: Introduction ......................................................................................................................................................... 1

Purpose............................................................................................................................................................................................. 2

Defining a Veteran............................................................................................................................................................................ 2

Methodology..................................................................................................................................................................................... 3

Chapter Two: Veterans’ Preferences in Hiring for Competitive Service Positions ..................................................................... 5

Competitive Examining .................................................................................................................................................................... 6

The Rule of Three...................................................................................................................................................................... 7

Category Rating......................................................................................................................................................................... 9

Additional Competitive Examining Provisions for Veterans .....................................................................................................11

Veterans Applying for Competition that is Internal to the Government.......................................................................................... 13

Veterans Recruitment Appointment.................................................................................................................................................15

Thirty Percent Disabled Veterans Appointment...............................................................................................................................18

Certified from a Training Program..................................................................................................................................................19

Chapter Three: Veteran Hiring in the Excepted Service........................................................................................................... 21

Examples of Agency-Based Statutory Hiring Authorities ............................................................................................................... 22

Examples of Position-Based Regulatory Hiring Authorities ........................................................................................................... 23

Other Excepted Service Hiring Authorities .................................................................................................................................... 24

Chapter Four: Perceptions Regarding Veteran Hiring ............................................................................................................. 25

Federal Employee Perceptions of Improprieties............................................................................................................................... 25

Department of Defense Employees’ Perceptions.............................................................................................................................. 30

Human Resources Perceptions........................................................................................................................................................ 33

Hiring Practices Strategies............................................................................................................................................................... 35

Chapter Five: Restrictions on Hiring Retired Service Members into the Department of Defense .......................................... 37

Delegation of the Waiver Authority ................................................................................................................................................ 42

The National Emergency ................................................................................................................................................................ 43

Survey Data for the 180-Day Rule.................................................................................................................................................. 44

Recommendations for the Future of the 180-Day Rule................................................................................................................... 48

Chapter Six: Findings and Recommendations.......................................................................................................................... 51

Summary of Veterans’ Hiring Authorities Findings and Recommendations....................................................................................51

Summary of the 180-Day Hiring Prohibition Findings and Recommendations ............................................................................. 52

Appendix A: Discussion of the Response by the Office of Personnel Management.................................................................. 55

Appendix B: Response by the Office of Personnel Management.............................................................................................. 57

Appendix C: Response by the Department of Defense ............................................................................................................. 61

Appendix D: Department of Defense Restriction Memorandum and Law .............................................................................. 65

Gilpatric Memorandum ...................................................................................................................................................................65

5 U.S.C. § 3326—Appointments of Retired Members of the Armed Forces to Positions in the Department of Defense .............. 66

Appendix E: Structuring Categories for Category Rating ........................................................................................................ 67

Appendix F: Glossary ................................................................................................................................................................ 69

Definition of Veteran and Related Terms (5 U.S.C. § 2108)........................................................................................................... 69

Hiring Authorities........................................................................................................................................................................... 71

Other Terms Used in the Report..................................................................................................................................................... 72

A Report by the U.S. Merit Systems Protection Board i

The laws and regulations regarding the preferences in hiring that can or must be given to 

veterans and certain family members are extremely complex. The preferences vary by the 

specific circumstances of the veterans and the hiring authorities being used. Some veterans 

can be non-competitively appointed, while other veterans may not be eligible for that same 

hiring authority, and the availability of an authority may depend on the grade of the position 

being filled. The right of a veteran to have his or her application considered for a position 

may depend on whether an agency is considering applicants who are internal to Government 

but outside the agency’s own workforce. The degree of preference owed can vary by agency 

or position being filled. Under certain circumstances, the mother of a veteran may be eligible 

for preference, whereas the father would not be eligible. There are many other examples of 

how veterans may be treated differently under the law, but to put the message more simply: 

the laws relating to veterans’ preference invite misunderstandings, confusion, perceptions of 

wrongdoing, and possibly actual wrongdoing—whether intentional or inadvertent.

This report discusses hiring authorities pertaining to veterans, the hiring of veterans under 

those authorities, and employee perceptions about veteran hiring. Data from a survey 

conducted by the U.S. Merit Systems Protection Board (“MSPB” or “The Board”) indicate that 

Federal employees perceived inappropriate favoritism towards veterans more frequently than 

they perceived denials of veterans’ preference rights, with 6.5 percent of respondents reporting 

they observed favoritism towards veterans compared to 4.5 percent reporting they observed a 

denial of veterans’ preference rights. Both sets of perceptions are problematic as such conduct 

is not in keeping with the merit system principles (MSPs) and the responsibility of agencies 

to avoid prohibited personnel practices (PPPs). Additionally, the survey data showed that 

employees are less likely to be engaged and more likely to want to leave their agencies if they 

report having observed either of these two types of conduct.

Agencies must operate within the laws enacted by Congress and regulations promulgated by 

the Office of Personnel Management (OPM). Many of the challenges discussed in this report 

can be addressed only by Congress, OPM, or both. However, agencies can do the following: 

(1) ensure that agency officials act appropriately within the laws and regulations; (2) educate 

the workforce about the rules regarding veterans; and (3) provide greater transparency about 

what is being done and why it is being done in a particular manner. 

Perceptions of inappropriate favoritism towards veterans are particularly an issue in the 

Department of Defense (DoD), where 8 percent of DoD employees responding to the survey 

reported having seen this behavior. Additionally, while only 3 percent of DoD supervisors 

and 2 percent of managers reported perceiving violations of preference rights, 7 percent of 

Executive Summary
Executive Summary

ii Veteran Hiring in the Civil Service: Practices and Perceptions

supervisors and 4 percent of managers reported perceptions of inappropriate favoritism 

towards veterans. 

Some of the perceptions of inappropriate favoritism may have been a result of the complex 

hiring process and a proliferation of hiring authorities, which can invite misunderstandings 

and provide opportunities for suspicion. However, in two other MSPB surveys, some DoD 

respondents wrote in comments to express that they had observed manipulations of the 

hiring process to favor individuals who were retiring from military service. These alleged 

improprieties included: (1) writing job descriptions specifically for retiring military members; 

(2) military or former-military colleagues of retirees hiring those retirees without regard for 

which applicant was better qualified; and (3) holding jobs vacant until the desired military 

retiree became available. Additionally, DoD’s own hiring data indicates that large numbers 

of retirees are being hired with little or no break in service between its military and civilian 

service, supporting perceptions that the hiring process was manipulated to ensure employment 

of those retirees. It is important that DoD address these perceptions and any underlying causes.

There is a statute, codified at 5 U.S.C. § 3326 (known as the 180-day rule), designed to prevent 

such occurrences by providing oversight for the hiring of recently retired military members 

into DoD. However, the issue of where the responsibility for oversight may rest is complicated 

(as discussed in the report) and, due to an exception in the law, the oversight has not been in 

effect for 13 years. 

Because of the seriousness of the survey respondents’ perceptions and allegations, the extent 

to which the negative perceptions are held by supervisors and managers, the supporting data 

from hiring records, and the allegations’ relationship to the MSPs and PPPs, we recommend 

resuming oversight of the hiring of military retirees. In the alternative, if Congress determines 

that the law is no longer needed, the law should be repealed.
A Report by the U.S. Merit Systems Protection Board 1

“They will not be persuaded to sacrifice all views of present interest, and encounter the numerous vicissitudes of 

War, in the defence of their Country, unless she will be generous enough, on her part, to make a decent provision 

for their future support[.]” 1

— George Washington

The history of veterans’ preference in Federal hiring and retention predates the foundation 

of the modern, merit-based civil service in the Pendleton Act of 1883.2 The Pendleton Act 

itself contained a provision to expressly protect preferences that had previously been granted 

to “those honorably discharged from the military or naval service[.]”3 As the civil service was 

modified and reformed in the 130 years following the Pendleton Act, Congress continued to 

make provisions for various forms of preference for those who served the Nation as a member 

of the armed forces. The result today is an assortment of rights scattered throughout several 

titles of the U.S. Code and the Code of Federal Regulations.4

There is no question that Congress has the power to create such rights regarding Federal 

employment or that there is a legitimate public policy purpose in protecting and rewarding 

those who risked their lives or dedicated their time in the uniformed services.5 Under Title 5 of 

the U.S. Code, agencies have an obligation to both: (1) observe all legally required preferences 

for veterans; and (2) ensure that selections are “determined solely on the basis of relative ability, 

knowledge, and skills, after fair and open competition which assures that all receive equal 

opportunity.”6 Balancing these two objectives can be challenging.7 Additionally, there are 

1 George Washington to John Bannister, April 21, 1778, available at www.loc.gov/teachers/classroommaterials/

presentationsandactivities/presentations/timeline/amrev/turning/dissolve.html. 

2 See Hilton v. Sullivan, 334 U.S. 323, 336-37 (1948) (explaining the retention provisions for veterans in an 

1876 statute). 

3 Pendleton Act of 1883, § 7.

4 These rights are enforceable through administrative procedures. “A preference eligible who alleges that an 

agency has violated such individual’s rights under any statute or regulation relating to veterans’ preference may file 

a complaint with the Secretary of Labor.” If the result of the Department of Labor’s efforts is unsatisfactory to the 

individual, an appeal may be filed with MSPB. 5 U.S.C. § 3330a. 

5 Differential treatment between veterans and non-veterans does not offend the Equal Protection Clause of 

the Fourteenth Amendment to the U.S. Constitution. See Hooper v. Bernalillo County Assessor, 472 U.S. 612, 620 

(1985).

6 5 U.S.C. §§ 2302(b)(11), 2301(b)(1).

7 An example of the effect of preferences in non-Federal merit systems can be found in: Charles Chieppo, “The 

Civil Service Systems Governments Need for the Modern Era,” Governing Magazine, Sep. 4, 2013, available at 

www.governing.com (discussing preferences in the city of Boston and how they prevented anyone who scored 100 

percent on a particular exam from being in the top 200 on a specific referral list).

Chapter One: Introduction
Executive Summary

2 Veteran Hiring in the Civil Service: Practices and Perceptions

policy objectives that strongly encourage the hiring of veterans into the civil service.8 Survey 

responses indicate that some employees perceive that agencies may have failed to adequately 

balance these obligations.9

PURPOSE

This report discusses various forms of preference for veterans permitted or required in Federal 

hiring as well as employee perceptions of how agencies are using those authorities.

The report’s goals include: 

• Informing policymakers about the complexities of the existing system;10

• Educating all readers to help them understand that the civil service is 

designed to increase hiring opportunities for veterans while simultaneously 

ensuring that hiring is based upon an individual’s merits as they relate 

directly to the job in question; and

• Helping agencies to recognize and address possible sources for improprieties 

and perceptions of improprieties with regard to the hiring of veterans.

DEFINING A VETERAN

The Merriam-Webster Dictionary defines a veteran as “an old soldier of long service” or “a 

former member of the armed forces.”11 However, the definition of a veteran for purposes of 

civil service law is not as simple as the dictionary might imply. Black’s Law Dictionary defines 

a veteran as “a person who has been honorably discharged from military service.”12 Title 38 of 

the U.S. Code, which deals with veterans’ benefits, defines a veteran as “a person who served 

in the active military, naval, or air service, and who was discharged or released therefrom 

under conditions other than dishonorable.”13 However, Title 5 of the U.S. Code, which applies 

8 See, e.g., Exec. Ord. No. 13518 (stating that it is the administration’s policy “to enhance recruitment of 

and promote employment opportunities for veterans within the executive branch, consistent with merit system 

principles and veterans’ preferences prescribed by law”). 

9 As discussed in greater depth in Chapter Four, data from our 2010 Merit Principles Survey (MPS) indicate 

that there are Federal employees who perceive that some veterans have been denied the preference to which they 

are entitled by law. There are also those who perceive that supervisors are providing “inappropriate” preferences to 

veterans.

10 Agencies may have flexibility in their choice of hiring authorities, but also can have flexibility in the 

assessment criteria they use within each of those authorities such as the knowledge, skills, or abilities upon which 

an applicant may be rated. This report is limited to hiring authorities and does not address assessment criteria. 

Our upcoming report on fair and open competition will discuss flexibilities related to the entire hiring process 

including assessment criteria.

11 www.m-w.com.

12 Black’s Law Dictionary 1700 (9th ed. 2009). An earlier edition of Black’s defined a veteran as “any honorably 

discharged soldier, sailor, marine, nurse, or army field clerk, who has served in military service of the United States 

in any war.” Black’s Law Dictionary 1736 (4th ed. 1968) (emphasis added).

13 38 U.S.C. § 101(2). 
Executive Summary

A Report by the U.S. Merit Systems Protection Board 3

to hiring in the civil service, contains its own definition of veteran, which incorporates some 

of Title 38 and then provides other language that Title 5 accepts as meeting the definition of 

“veteran.”14 The full definition of “veteran” from Title 5 contains approximately 250 words and 

can be found in the glossary at Appendix F. The glossary also provides the Title 5 definitions 

for disabled veteran and preference eligible.

The preferences due to an individual as a result of military service will often have additional 

requirements or restrictions beyond being a “veteran.” Some hiring preferences given to 

veterans require that the veteran have served for a set period of time.15 Others are predicated 

upon the extent of the sacrifices made by the veteran in service to the Nation.16 Additionally, 

under certain conditions, the preference earned by the veteran may be used by someone other 

than the veteran, such as a spouse, widow(er), or mother.17 Thus, the term “preference eligible” 

is not interchangeable with “preference eligible veteran.”18 A veteran is not “preference eligible” 

unless he or she retired below the rank of Major or its equivalent—with an exception for those 

who are disabled.19 Furthermore, according to the so-called “180-day rule,” a retired member 

of the armed forces cannot be appointed to a position in DoD (including non-appropriated 

fund instrumentalities) for 180 days after retirement, unless one of three exceptions applies.20

Because of all the caveats and exceptions that apply to the hiring of veterans, it is understandable 

that misunderstandings will arise.

METHODOLOGY

This study relies primarily upon a review of Federal laws and regulations as well as data from 

three surveys conducted by the MSPB: (1) the 2010 Merit Principles Survey (MPS); (2) the 2011 

Federal Merit Systems Survey (FMSS); and (3) the 2011 Fair and Open Competition Survey 

14 5 U.S.C. § 2108. 

15 For example, “[p]reference eligibles or veterans who have been separated from the armed forces under 

honorable conditions after 3 years or more of active service may not be denied the opportunity to compete for 

vacant positions for which the agency making the announcement will accept applications from individuals outside 

its own workforce under merit promotion procedures.” 5 U.S.C. § 3304(f)(1). 

16 For example, “an agency may make a noncompetitive appointment leading to conversion to career or careerconditional employment of a disabled veteran who has a compensable service-connected disability of 30 percent or 

more.” 5 U.S.C. § 3112. 

17 5 U.S.C. § 2108; 5 C.F.R. § 211.102 (preference eligible means veterans, spouses, widows, or mothers). 

18 Compare 5 U.S.C. § 2108(1)-(2) (defining “veteran” and “disabled veteran” to include only those who “served 

on active duty”) with § 2108(3) (defining “preference eligible” as certain types of veterans and disabled veterans, 

but also relatives of certain veterans who meet extremely specific criteria). 

19 5 U.S.C. § 2108(4). 

20 5 U.S.C. § 3326. A copy of the section of the law and the memorandum upon which that law was based can 

be found in Appendix D. 
Executive Summary

4 Veteran Hiring in the Civil Service: Practices and Perceptions

(FOCS).21 We also sent questionnaires to OPM and DoD, and invited the Department of Labor 

(DOL) and veterans’ organizations to comment on the complexity in veterans’ hiring laws and 

how they might be improved. DOL and the veterans’ organizations declined to respond; OPM 

and DoD submitted responses which are discussed within the report. Additionally, this report 

uses data from OPM’s Central Personnel Data File (CPDF) regarding the full-time, permanent 

Federal workforce.22

We also provided both OPM and DoD with a draft copy of this report and an opportunity 

to comment. We have considered those comments and the report includes clarifications 

and technical corrections based on those comments. However, the report’s broad findings 

and conclusions remain essentially unchanged. A brief discussion of OPM’s response is in 

Appendix A. A copy of OPM’s full response is in Appendix B and a copy of DoD’s full response 

is in Appendix C. We thank both agencies for their input. 

21 The 2010 MPS was administered to permanent, full-time Federal employees in 18 departments and 6 

independent agencies, representing over 97 percent of the permanent, full-time Federal workforce as of September 

2009. MSPB distributed 71,970 surveys and received 42,020 surveys—a response rate of 58 percent. The 2011 

FMSS was administered between July and October of 2011. We received 17,339 usable survey responses out of 

52,620 surveyed for a response rate of 33 percent. The 2011 FOCS was sent to approximately 34,000 Federal HR 

specialists and assistants Government-wide. It was administered from June-August of 2011 and had a response rate 

of 30 percent. 

22 The CPDF does not include data from the U.S. Postal Service or certain security and intelligence agencies, 

such as the Central Intelligence Agency or National Security Agency. 
A Report by the U.S. Merit Systems Protection Board 5

“Resolved by the Senate and House of Representatives of the United States of America, in Congress assembled, 

[t]hat persons honorably discharged from the military or naval service by reason of disability resulting from 

wounds or sickness incurred in the line of duty, should be preferred for appointments to civil offices, provided 

they shall be found to possess the business capacity necessary for the proper discharge of the duties of such 

offices.” 

 —March 3, 186523

The competitive service consists of all civilian positions in the Federal Government that are not 

specifically excepted by law, executive order, or OPM regulation.24 As explained in Chapter 

Three, veterans’ preference also applies to the excepted service, although it may take a different 

form than in the competitive service. However, the Senior Executive Service (SES) is a separate 

service and is not addressed in this report because veterans’ preference does not apply to the 

SES.25

Before discussing some of the authorities that may be used to hire an individual into positions 

that are in the competitive service,26 it is important to note that agencies often solicit candidates 

using multiple authorities at the same time. “Agencies may use a variety of appointing 

authorities to hire job applicants.”27 An agency may conduct “simultaneous parallel procedures 

under the competitive examination and merit promotion processes to fill the same position.”28

For example, an agency may select a candidate from a list of reinstatement eligible applicants 

(which does not use veterans’ preference), even if there is another referral list containing 

preference eligibles.29

23 Res. of Mar. 3, 1865, No. 27, 13 Stat. 571. 

24 See U.S. Office of Personnel Management, Guide to Processing Personnel Actions, Glossary, available at www.

opm.gov/policy-data-oversight/data-analysis-documentation/personnel-documentation/processing-personnelactions/gppa35.pdf.

25 5 U.S.C. § 2108(3).

26 There are numerous hiring authorities for competitive service positions. This report focuses on those which 

are most common or deliberately designed to bring veterans into the civil service. 

27 U.S. Office of Personnel Management, Hiring Authorities, available at www.opm.gov/policy-data-oversight/

hiring-authorities/.

28 Joseph v. Federal Trade Commission, 505 F.3d 1380, 1384-85 (Fed. Cir. 2007) (explaining that an agency did 

not violate veterans’ preference when it used parallel procedures and opted to select from the merit promotion list 

rather than appoint a veteran from the competitive examining certificate).

29 Sherwood v. Department of Veterans Affairs, 88 M.S.P.R. 208, ¶ 10 (2001) (finding that an agency was 

permitted to hire a candidate using the reinstatement authority despite the presence of a veteran with preference on 

a competitive examining certificate because civil service rules gave the “agency the discretion to fill the...position 

by any authorized method, such as the reinstatement method”). See Special Counsel v. Lee, 114 M.S.P.R. 57, ¶ 21 

(2010) (explaining that canceling a vacancy announcement and/or selecting one specific type of hiring authority 

over another are legally permissible absent any intent to afford preferential treatment to an individual), rev’d in part

on other grounds in Beatrez v. Merit Systems Protection Board, 413 F. App’x 298 (Fed. Cir. 2011).

Chapter Two: Veterans’ Preferences in 

Hiring for Competitive Service Positions
Chapter Two: Veterans’ Preferences in Hiring for Competitive Service Positions

6 Veteran Hiring in the Civil Service: Practices and Perceptions

COMPETITIVE EXAMINING

Competitive examining, while the most open of all hiring authorities, is used to appoint less 

than one-third of new Federal hires.30 Competitive examining allows all qualified U.S. citizens 

to apply for a vacancy.31 By law, under competitive examining, individuals who meet certain 

criteria related to military service receive a form of preference when being considered for 

positions. This is known as “veterans’ preference.”32

In FY 2010, the year the MPS was conducted, only 27 percent of the positions in the civil 

service that were filled with an external hire were filled using a competitive examining hiring 

authority.33 One possible reason why agencies may use alternatives to competitive examining 

may be the sheer complexity of the process and the labor involved in adhering to all of its rules. 

Another possible reason is that agencies may want to be presented with as many different 

options as possible from which to select a new employee.34

There is no unified test covering admission to all civil service positions.35 Most competitive 

examinations are conducted by Delegated Examining Units (DEUs), which consist of human 

resources (HR) staff in the hiring agency who have been authorized by OPM to conduct 

examinations in accordance with OPM’s rules.36 There are two statutorily authorized methods 

to conduct competitive examining: (1) the rule of three; and (2) category rating.37 As discussed 

below, they share some commonalities, yet differ at an important stage in the process.

30 See U.S. Merit Systems Protection Board, Federal Appointment Authorities: Cutting through the Confusion, at 

4, available at www.mspb.gov (showing that in 2005, competitive examining accounted for less than one-third of 

new appointments).

31 Current and former Federal employees may apply for competitive examining opportunities, but they will 

be assessed under the rules set forth for competitive examining and receive no advantage based on their status as 

current or former employees. 

32 See 5 U.S.C. §§ 3309; 2108. An extensive definition of veterans’ preference may be found in the Glossary in 

Appendix F. 

33 From FY 2000 to FY 2012, Government-wide, 30 percent of external new hires were through competitive 

examining. In DoD, for this same period it was 24 percent, and for non-DoD agencies it was 34 percent. U.S. 

Office of Personnel Management, CPDF.

34 See U.S. Merit Systems Protection Board, Federal Appointment Authorities: Cutting through the Confusion, at 

28, available at www.mspb.gov/studies (explaining that the use of any particular hiring authority is often not well 

planned, but rather a result of which referral list contains the name of a desired candidate). 

35 U.S. Office of Personnel Management, Delegated Examining Operations Handbook, at 41, available at 

www.opm.gov/deu.

36 OPM still has the authority to conduct examinations, although the exercise of that authority is rare 

compared to the use of DEUs. U.S. Office of Personnel Management, CPDF, FY 2000-FY 2012. 

37 5 U.S.C. §§ 3318(a), 3319. 
Chapter Two: Veterans’ Preferences in Hiring for Competitive Service Positions

A Report by the U.S. Merit Systems Protection Board 7

The Rule of Three

Although a 2010 executive memorandum instructs agencies not to use it, the rule of three 

remains in the statute.38 We discuss the rule of three below because it: (1) was still in use a few 

months before our survey was conducted in 2010; (2) remains in statute; (3) has been used in 

the past; (4) may be used in the future; and (5) some of the rules used when hiring through this 

method also apply to category rating. 

Under the rule of three, when a candidate met the minimum qualification requirements for a 

position, the candidate would be assigned a numeric score.39 Points would then be added to 

this score if the individual was entitled to veterans’ preference.40 Veterans’ preference points 

were assigned as follows. Five points were added to the passing examination score or rating of 

a veteran who served:

• During a war; 

• During the period April 28, 1952 through July 1, 1955; 

• For more than 180 consecutive days, other than for training, any part of 

which occurred after January 31, 1955, and before October 15, 1976; 

• During the Gulf War from August 2, 1990, through January 2, 1992; 

• For more than 180 consecutive days, other than for training, any part of 

which occurred during the period beginning September 11, 2001, and 

ending on the date prescribed by Presidential proclamation or by law as the 

last day of Operation Iraqi Freedom; or 

• In a campaign or expedition for which a campaign medal has been 

authorized. Any Armed Forces Expeditionary medal or campaign badge, 

including El Salvador, Lebanon, Grenada, Panama, Southwest Asia, Somalia, 

and Haiti, qualifies for preference.

Ten points were added to the passing examination score of:

• A veteran who served at any time who has a compensable service-connected 

disability rating of at least 10 percent but less than 30 percent;

• A veteran who served at any time who has a compensable service-connected 

disability rating of 30 percent or more;

38 Compare 5 U.S.C. § 3318(a) with Presidential Memorandum, Improving the Federal Recruitment and Hiring 

Process, § 1(a)(3) (May 11, 2010), available at www.whitehouse.gov/the-press-office/presidential-memorandumimproving-federal-recruitment-and-hiring-process (directing agencies to stop the use of the rule of three and to 

instead only use category rating for competitive examining).

39 See 5 U.S.C. § 3318 (explaining the process for the rule of three). The “rule of three” can be traced back as 

far as 1888, when a “rule of four” was reduced to three. See U.S. Merit Systems Protection Board, The Rule of Three 

in Federal Hiring: Boon or Bane (1995), Appendix 1, available at www.mspb.gov/studies.

40 See 5 U.S.C. § 3309.
Chapter Two: Veterans’ Preferences in Hiring for Competitive Service Positions

8 Veteran Hiring in the Civil Service: Practices and Perceptions

• A veteran who served at any time and has a present service-connected 

disability or is receiving compensation, disability retirement benefits, or 

pension from the military or the Department of Veterans Affairs but does 

not qualify under a different item in this list; 

• A veteran who received a Purple Heart; or

• A spouse, widow(er), or mother41 of a veteran who meets certain criteria 

related to the veteran’s death or disability.42

In addition to the application of points, a minimally qualified veteran with a compensable, 

service-connected disability of 10 percent or more would automatically be placed at the top of 

the list, even if other candidates scored much higher after the addition of the 10 extra points. 

This elevation was known as “floating” to the top of the list.43 

Once veterans’ preference was applied to whomever met the criteria, the top three candidates 

would then be referred on a certificate in order of their adjusted scores. On a rule of three 

certificate, a supervisor was prohibited from selecting a non-veteran if there was a veteran 

higher on the list. In other words, a supervisor could not hire the second person on the list if 

the first person was a veteran and the second was not, even if the second person had a higher 

41 Mothers are an example of how complex veterans’ preference laws can be, because there are special 

requirements about a mother’s private life that must be met for her to qualify for preference based on the service 

of her child. See 5 U.S.C. §§ 2108(3)(F), (G) (describing a husband, marriage, divorce, separation, or widowhood 

as a condition to qualify); Veterans’ Preference Benefits—Extension to Widowed Mothers, H. Rep. No. 697 

(1948 U.S.C.A.A.N. 995-97); U.S. Office of Personnel Management, Vetguide, available at www.opm.gov/

staffingportal/vetguide.asp (explaining that it is a requirement that the mother “is or was married to the father of 

the veteran”). We asked OPM why it had concluded that the woman’s spouse must be the father of the veteran and 

OPM indicated that the question required further study. U.S. Office of Personnel Management, Reply to MSPB’s 

Veteran Questionnaire, Apr. 2, 2013. The Board has not had occasion to address the effect of a same-sex marriage 

on the requirement that a marriage has occurred. See United States v. Windsor, 133 S. Ct. 2675 (2013) (holding 

that it is unconstitutional to limit the Federal interpretation of marriage or spouse to apply only to heterosexual 

unions).

42 For more on these categories, see U.S. Office of Personnel Management, Vet Guide, available at www.opm.

gov/staffingportal/vetguide.asp. See also U.S. Office of Personnel Management, Delegated Examining Operations 

Handbook, at 99-100, available at www.opm.gov/deu. 

The codes used to designate these categories on a referral list are as follows:

CPS 10-Point 30 Percent Compensable Disability Preference based on a service-connected disability of 30% or 

more; 

CP 10-Point Compensable Disability Preference based on a service-connected disability of 10% or more, but 

less than 30%; 

XP 10-Point Disability Preference; granted to recipients of the Purple Heart, persons with a non-compensable 

service-connected disability (less than 10%); 

XP 10-Point Derived Preference; granted to widow/widower or mother of a deceased veteran, or spouse or 

mother of a disabled veteran; 

TP 5-point preference; and 

NV designates a non-veteran (this is an optional code that delegated Examining Offices may use; a blank space 

is also used to designate non-veterans).

43 “Floating” does not occur for professional or scientific positions at grades GS-09 or higher. 5 U.S.C. 

§§ 3309, 3313.
Chapter Two: Veterans’ Preferences in Hiring for Competitive Service Positions

A Report by the U.S. Merit Systems Protection Board 9

score before the scores were adjusted for points and floating occurred.44 This was known as 

“blocking” the list.45

If a selecting official concluded that that the veteran blocking the list was not qualified, the 

official could submit a “pass over” request to the examination unit.46 The pass over process is 

the same under category rating, which is discussed in the next section. Examples of acceptable 

reasons to request a pass over include: a prior history of performance issues; medical inability 

to perform the duties; or an intentional false statement made in the examination process.47

DEUs are delegated the authority to decide to pass over a veteran, unless the individual is a 

30 percent compensable veteran, in which case, OPM retains the authority to make the pass 

over determination.48 If the pass over request is denied, the agency is not permitted to select a 

lower-ranking non-preference eligible.49

Category Rating

In 2002, Congress authorized the Government-wide use of category rating as an alternative 

approach for competitive examining.50 On May 11, 2010, the President directed agencies to 

stop using the rule of three and instead to only use category rating for competitive examining.51

One of the most important differences between the rule of three and category rating is that 

category rating does not use a point-based system, and thus veterans’ preference takes a 

different form. 

44 U.S. Office of Personnel Management, Delegated Examining Operations Handbook, at 150-54, available at 

www.opm.gov/deu. However, if “the top three eligible candidates are veterans, there is no distinction among the 

preferences. In this group, the veterans are equal and any one veteran can be selected regardless of preference.” Id. 

at 153.

45 See U.S. Merit Systems Protection Board, The Rule of Three in Federal Hiring: Boon or Bane (1995), available 

at www.mspb.gov/studies.

46 U.S. Office of Personnel Management, Delegated Examining Operations Handbook, at 163, available at 

www.opm.gov/deu. 

47 U.S. Office of Personnel Management, Delegated Examining Operations Handbook, at 159-63, available 

at www.opm.gov/deu. See also U.S. Merit Systems Protection Board, Clean Record Settlement Agreements and the 

Law (explaining that, when asked about past employment, if an individual intentionally fails to disclose that he or 

she was removed or left a job by mutual agreement the individual’s lack of candor can be a basis for removal and 

debarment from Federal service).

48 U.S. Office of Personnel Management, Delegated Examining Operations Handbook, at 163, available at 

www.opm.gov/deu.

49 U.S. Office of Personnel Management, Delegated Examining Operations Handbook, at 163, available at 

www.opm.gov/deu.

50 See Homeland Security Act of 2002, Pub. L. No. 107-296, § 1312. Prior to this law, category rating was 

only permitted on a limited basis. See U.S. Merit Systems Protection Board, The Rule of Three in Federal Hiring: 

Boon or Bane (1995), available at www.mspb.gov/studies, in which MSPB described and compared the rule of 

three and category rating and concluded that category rating procedures “fit better with veterans’ preference 

requirements and are arguably fairer to veterans, nonveterans, and managers than are the traditional register and 

case examining approaches.”

51 Presidential Memorandum, Improving the Federal Recruitment and Hiring Process, § 1(a)(3), available at www.

whitehouse.gov/the-press-office/presidential-memorandum-improving-federal-recruitment-and-hiring-process. 
Chapter Two: Veterans’ Preferences in Hiring for Competitive Service Positions

10 Veteran Hiring in the Civil Service: Practices and Perceptions

Under category rating, applicants who meet minimum qualifications are grouped into 

categories, such as “best qualified” and “well qualified.”52 The Delegated Examining Operations 

Handbook explains that agencies must establish and define the categories prior to announcing 

the job.

53 This timing is critical, because: (1) the rules require it; and (2) any attempt to tailor 

the criteria for a category after receiving applications could create an opportunity for real 

or perceived manipulation of the process. If the proper sequence of events is not followed, 

allegations can arise that an agency sought to deliberately exclude candidates by placing the 

dividing line between categories (known as the cut-off) based on knowledge of where the 

candidates would be in relation to that line.54

Once the candidates have been placed in their categories, a form of veterans’ preference 

is applied. In category rating, there are no points added to any scores.55 Instead, qualified 

preference eligibles designated as having a 10 percent or more compensable disability float to 

the top of the list just as in the rule of three. All other preference eligibles float to the top of 

the category in which they were placed. A selecting official may select any eligible candidate(s) 

in the highest quality category, but cannot bypass a preference eligible for a non-preference 

eligible.56 However, other than veterans’ preference, all candidates in the referred category are 

on an equal footing—there is no requirement to select from the first three candidates.57

Before category rating was enacted, it was tested as a demonstration project. In our 1995 report, 

The Rule of Three in Federal Hiring: Boon or Bane, we compared the rates at which a selection 

52 For a discussion of the formation of categories, please see Appendix E, Structuring Categories for Category 

Rating.

53 U.S. Office of Personnel Management, Delegated Examining Operations Handbook, at 101, available at 

www.opm.gov/deu; see 5 C.F.R. § 337.303(c). 

54 See U.S. Department of Energy, Office of Inspector General Management Alert, Allegations Regarding 

Prohibited Personnel Practices at the Bonneville Power Administration, Jul. 2013, available at energy.gov/sites/prod/

files/2013/07/f2/IG-0891.pdf (alleging that the Bonneville Power Administration may have manipulated category 

rating by drawing the cut-off line after receiving applications in order to deny veterans their lawful preference). 

But see U.S. House of Representatives, Committee on Oversight and Government Reform, Aug. 1, 2013, at 

1:02:50-1:03:15, available at oversight.house.gov/hearing/department-of-energys-bonneville-power-administrationdiscriminating-against-veterans-and-retaliating-against-whistleblowers/ (Inspector General Gregory Friedman 

testifying that he was “not there yet” on determining whether the denial of veterans’ preference was intentional). 

55 See U.S. Office of Personnel Management, Delegated Examining Operations Handbook, at 106-07, 

available at www.opm.gov/deu.

56 The ability of a preference eligible to block other candidates in the same category may not seem pertinent if 

the individuals in question do not qualify for the highest quality category. However, as explained in Appendix E, 

if there are fewer than three candidates in the highest quality category, an agency may merge the top two quality 

categories. Preference eligibles will be listed above non-preference eligibles in the newly merged category. See U.S. 

Office of Personnel Management, Delegated Examining Operations Handbook, at 107-10, available at www.opm.

gov/deu.

57 Within a category, “a selecting official may not pass over a preference eligible to select a non-preference 

eligible unless there are grounds for passing over the preference eligible and the agency has complied with the pass 

over procedures at 5 U.S.C. § 3318.” U.S. Office of Personnel Management, Delegated Examining Operations 

Handbook, at 106, available at www.opm.gov/deu; see also 5 U.S.C. § 3318(b) (explaining what is required when 

passing over a preference eligible for an individual without preference, and the additional steps necessary if the 

individual being passed over is a 30 percent compensable veteran). As stated earlier, OPM retains the authority to 

make pass over decisions for veterans with compensable disabilities of 30 percent or more. U.S. Office of Personnel 

Management, Delegated Examining Operations Handbook, at 106.
Chapter Two: Veterans’ Preferences in Hiring for Competitive Service Positions

A Report by the U.S. Merit Systems Protection Board 11

was made from a rule of three certificate for a single vacancy (called case examining) versus 

a certificate using category rating. We found that 65 percent of category rating certificates 

resulted in a selection, compared to only 57 percent of case examining certificates.58 A different 

report evaluating the demonstration project stated that one of the strengths of the program 

was “a manager’s ability to review and have access to more than three candidates.”59 

The test agency found that veterans had a greater likelihood of being hired under category 

rating than under the rule of three.60 One possible explanation for this outcome may be that 

an agency is no longer limited to selecting from among only three candidates. For example, if 

the top category contains eight veterans with 5-point preference, all eight will be referred. This 

may increase the potential that one of the referred veteran candidates will impress management 

sufficiently to be selected; whereas if management is not impressed with the three candidates 

referred under the rule of three, management may opt not to take anyone from that certificate 

and instead use a different hiring authority or select no one at all.61

It is possible for a veteran who would have been referred under the rule of three to not be 

referred under category rating. Under category rating, a veteran with preference points but no 

disability who just misses the cut-off line will not be referred, while a non-veteran who scores 

just above the cut-off line will be referred and can be selected, if not blocked by a veteran. 

While category rating overall appears to benefit veterans, for a preference eligible who is not 

placed in a referred category, this process can seem unfair because the preference applies only 

within a category—not in relation to all other applicants.

Additional Competitive Examining Provisions for Veterans

For certain positions with an age requirement, the agency may be required to waive that 

condition for a preference eligible.62 If a non-veteran who is 38 years old is told that an 

application will not be accepted because 38 years is too old to apply, but the application of a 

preference eligible who is 39 years old is accepted, the non-veteran may question whether this 

is proper.

58 U.S. Merit Systems Protection Board, The Rule of Three in Federal Hiring: Boon or Bane (1995), at 12.

59 U.S. Merit Systems Protection Board, The Rule of Three in Federal Hiring: Boon or Bane (1995), at 16 

(quoting U.S. Office of Personnel Management, “U.S. Department of Agriculture Personnel Management 

Demonstration Project Third Annual Evaluation Report” (prepared under contract by the Pennsylvania State 

University), Washington, DC, August 1994, p. 37).

60 U.S. Merit Systems Protection Board, “Categorical Grouping Treats Veterans Better than Rule of Three,” 

Issues of Merit, Nov. 2001, at 4, available at www.mspb.gov/studies.

61 An agency is permitted to select from any properly constituted list, even if the effect of selecting from a 

different list is that a non-preference eligible individual is appointed. See Joseph v. Federal Trade Commission, 505 

F.3d 1380, 1384-85 (Fed. Cir. 2007); Abell v. Department of the Navy, 343 F.3d 1378, 1384 (Fed. Cir. 2003).

62 See Isabella v. Department of State, 106 M.S.P.R. 333, ¶ 29 (2007), reconsideration denied, 109 M.S.P.R. 453 

(2008) (explaining that agencies may be required to waive age requirements in determining the qualifications of 

a preference eligible for appointment to a position in the competitive or excepted service unless the requirement 

is essential to the performance of the duties of the position). Outside of this exception, agencies are, generally, 

permitted to set age restrictions for certain positions, such as air traffic controller, firefighter, law enforcement 

officer, nuclear materials courier, customs and border protection officer, or foreign service special agent. See 5 

U.S.C. § 3307; 22 U.S.C. § 4823.
Chapter Two: Veterans’ Preferences in Hiring for Competitive Service Positions

12 Veteran Hiring in the Civil Service: Practices and Perceptions

Furthermore, there are a few jobs that are set aside for which a preference eligible must be 

selected unless no preference eligible veterans are available.63 An applicant who is not aware of 

this law may believe that an inappropriate preference has been given.64 

Additionally, depending on the nature of an individual’s preference, certain preference eligibles 

are entitled to be placed on a “register” even if the register is closed to others. (Registers are 

used to establish a list of qualified applicants for positions that are frequently vacant so that the 

agency need not issue a new vacancy announcement each time it intends to hire.) Veterans 

who are unable to file an application at the time of the announcement due to military service, 

reserve duties, or hospitalization may also be able to file late.65 If someone unfamiliar with the 

rules learns that an individual was allowed an exception to the closing date, the observer may 

perceive the lawful action as improper. 

Limitations on the applicability of preference within competitive examining also may create 

misunderstandings. Under category rating, any individuals with a 10 percent or more serviceconnected disability do not automatically float to the top of the list if the position is scientific or 

professional at the grade GS-09 (or equivalent) or above. For example, a hypothetical person, 

Jessie, is a 30 percent disabled veteran with a degree in engineering who is minimally qualified 

to be an engineer as well as an engineering technician. Jessie applies for a GS-09 engineer 

position and a position as a GS-09 engineering technician position. Jessie will automatically 

float to the top of the technician certificate, but not the engineer certificate. If Jessie does not 

understand this part of the veterans’ preference rules, Jessie may assume that a preference 

granted in one case has been unlawfully withheld in the other, when, in fact, the law would not 

permit the agency to grant this preference for an engineering position because it is considered 

a “professional” or “scientific” position.66

As long as it is the policy of the Federal Government to recognize military service by providing 

preferential treatment in the civil service, any agency to which the rules apply has a responsibility 

to educate people about veterans’ preferences. Such education for managers and HR staff is 

necessary to ensure that the authorized preferences are given, but the education is also needed 

to ensure that those who observe the preferences are not demotivated or disengaged by 

perceptions of inappropriate favoritism. For external applicants in particular, agencies may 

find it helpful to refer interested parties to sources of information such as OPM’s Vet Guide. Of 

course, internal and external education would be easier if the rules were simpler.67

63 5 U.S.C. § 3310 (applies to the position of guard, elevator operator, messenger, or custodian).

64 If the applicant is informed of the law but disagrees with it, a perception of “inappropriate” favoritism may 

still occur, as “legal” and “appropriate” have different definitions.

65 See U.S. Office of Personnel Management, Vet Guide, available at www.opm.gov/staffingportal/vetguide.asp. 

66 “Floating” does not occur for professional or scientific positions at grades GS-09 or higher. 5 U.S.C. 

§§ 3309, 3313. See also U.S. Office of Personnel Management, Delegated Examining Operations Handbook, at 

107, available at www.opm.gov/deu. 

67 As discussed later, there are also rules that pose some challenges for explaining to employees what occurred, 

due to the privacy rights of the individuals to whom the rules were applied. See 5 U.S.C. §§ 552a(b); 552.
Chapter Two: Veterans’ Preferences in Hiring for Competitive Service Positions

A Report by the U.S. Merit Systems Protection Board 13

VETERANS APPLYING FOR COMPETITION THAT 

IS INTERNAL TO THE GOVERNMENT

As stated earlier, an agency has the discretion to fill a vacant position by selecting one specific 

type of hiring authority over another.68 One of the most commonly used authorities to select 

an individual for a position is the use of “merit promotion procedures” (MPP).69 Among 

other things, MPP permits agencies to hire individuals who already work for the Government 

into other positions without any requirement to offer external applicants the opportunity to 

be considered through competitive examining. However, as with so many issues involving 

veterans, there is a caveat.

If an agency’s area of consideration is limited to individuals already in the agency’s own 

workforce, then veterans and other preference eligibles70 have no special right to apply and 

have their applications considered. But, under the Veterans Employment Opportunities Act 

of 1998 (VEOA),71 if the agency considers applicants internal to the Government from outside 

its own workforce, then any veteran who was honorably discharged after three years of service, 

and any preference eligible, is entitled to have his or her application considered.72

For example, if the General Services Administration (GSA) announces an MPP vacancy with 

an area of consideration limited to current GSA employees in the competitive service, no one 

outside of GSA has a right to apply and be considered for the position. But, if GSA’s area of 

consideration is all current Federal employees in the competitive service, then veterans and 

other preference eligibles are entitled to apply and be considered for the position. 

However, the definition of “agency” can be complicated when dealing with DoD, because 

according to Board case law the military departments within DoD are each considered 

68 Canceling a vacancy announcement or selecting one specific type of hiring authority over another are legally 

permissible absent any intent to afford preferential treatment to an individual. Special Counsel v. Lee, 114 M.S.P.R. 

57, ¶ 21 (2010), rev’d in part on other grounds in Beatrez v. Merit Systems Protection Board, 413 F. App’x 298 (Fed. 

Cir. 2011); Joseph v. Federal Trade Commission, 103 M.S.P.R. 684, ¶ 11 (2006).

69 This is also referred to as a “merit promotion program” or “merit staffing program.” Compare 5 U.S.C. 

§ 3304(f)(1) (merit promotion procedures) with U.S. Office of Personnel Management, Guide to Processing 

Personnel Actions, Glossary, available at www.opm.gov/policy-data-oversight/data-analysis-documentation/

personnel-documentation/processing-personnel-actions/gppa35.pdf (merit promotion program and merit staffing 

program). 

70 As indicated in the introduction when discussing the definition of a veteran, under certain conditions, it is 

possible to be a preference eligible without being a veteran—such as widows, widowers, and mothers. 

71 In addition to granting the right to be considered for certain positions, VEOA created an additional PPP, 

codified at 5 U.S.C. § 2302(b)(11) (prohibiting a knowing violation of a preference right). VEOA also created a 

procedure for veterans and preference eligibles to seek redress for a violation of a preference right. See 5 U.S.C. 

§ 3330a. VEOA is distinct from the Uniformed Services Employment and Reemployment Rights Act of 1994 

(codified at 38 U.S.C. §§ 4301-4333) (USERRA), which protects reemployment rights for individuals returning 

from a period of service in the uniformed services (including the reserves or National Guard) and prohibits 

employer discrimination based on military service or obligations.

72 5 U.S.C. § 3304(f). In FY 2010, 15 percent of external new hires were brought into the civil service using 

the VEOA authority. For DoD, VEOA was used to appoint 22 percent of external new hires, while in non-DoD 

agencies it was 8 percent. U.S. Office of Personnel Management, CPDF, FY 2010.
Chapter Two: Veterans’ Preferences in Hiring for Competitive Service Positions

14 Veteran Hiring in the Civil Service: Practices and Perceptions

individual agencies.73 For other cabinet departments, the Board has found that subordinate 

bureaus are considered part of the same agency—namely the department that runs them.74

This is pertinent because the right to apply under VEOA is based on recruitment occurring 

outside the “agency.” So, to determine whether there is a right to consideration, one must first 

determine what entities are a part of the hiring agency and whether any other agencies are in 

the area of consideration.75

For example, if the sole area of consideration for a vacancy is competitive service Army 

employees, then veterans and preference eligibles who do not already work for the Army in such 

positions are not entitled to consideration for the vacancy.76 But if the area of consideration 

encompasses all competitive service DoD employees, then more than one agency is in the area 

of consideration, so a qualifying veteran or preference eligible is entitled to also be considered, 

even if the individual has never worked in the civil service.77 

In contrast, Customs and Border Protection (CBP) and Immigration and Customs Enforcement 

(ICE) are two separate components within a single agency—the Department of Homeland 

Security (DHS).78 Thus, an MPP vacancy open only to employees of CBP and ICE involves 

73 The military departments are considered separate agencies because of the law that created DoD in 1949. 

See Washburn v. Department of the Air Force, 119 M.S.P.R. 265, ¶¶ 7-8 (2013); Francis v. Department of the Navy, 

53 M.S.P.R. 545, 550-51 (1992). In Vassallo v. Department of Defense, the Board noted that OPM’s VetGuide

states that DoD is an agency and that its components are not to be considered separate agencies for purposes 

of the VEOA hiring authority. However, the Board expressly rejected that interpretation, holding that the 

Defense Contract Management Agency (DCMA) was a distinct agency within DoD and that because DCMA 

accepted applications from outside DCMA for a particular vacancy, DCMA was obligated to also accept VEOA 

applications. Vassallo v. Department of Defense, 121 M.S.P.R. 70, ¶¶ 5, 7, 8, 11 (2014). OPM has filed a request 

that the Board reconsider its decision in Vassallo.

74 See, e.g., Scull v. Department of Homeland Security, 113 M.S.P.R. 287, ¶ 18 (2010) (explaining that ICE and 

CBP are part of one agency—the Department of Homeland Security). 

75 In its reply to a draft copy of this report, DoD asserted that the decision in Washburn (and thus presumably 

in Vassallo) conflicts with OPM’s regulation at 5 C.F.R. § 315.611(b), which states that “agency” in this context has 

the same meaning as “executive agency” as defined in 5 U.S.C. § 105. While we cannot resolve such an issue in 

a report, we note that in Willingham v. Department of the Navy, 118 M.S.P.R. 21, ¶ 10 (2012), the Board held that 

it is not at all clear that Congress intended that the unqualified and seemingly broader use of “agency” in section 

3330a be constricted by the definition of “executive agency” in 5 U.S.C. § 105. Depending upon the arguments 

advanced in the Vassallo reconsideration case, this issue may be discussed at that time. 

76 Another complicating factor can be that DoD components each have non-appropriated fund 

instrumentalities (NAFIs), and the Board has held that, under certain circumstances, a NAFI is part of an agency 

for purposes of VEOA. Willingham v. Department of the Navy, 118 M.S.P.R. 21, ¶ 18 (2012) (addressing the 

applicability of VEOA redress procedures). Thus, if an agency opens recruitment to only competitive service and 

NAFI employees of the agency eligible for the interchange agreement, a veteran excluded from these categories may 

perceive a denial of the opportunity to compete.

77 For example, in Washburn v. Department of the Air Force, the area of consideration was limited to employees 

of a single command within DoD that employed civilians from multiple DoD agencies. Because the command was 

composed of employees from more than one DoD agency, the area of consideration went beyond the hiring agency, 

and thus the hiring agency was required to consider VEOA applicants. Washburn v. Department of the Air Force, 

119 M.S.P.R. 265, ¶¶ 9, 11 (2013). 

78 See Scull v. Department of Homeland Security, 113 M.S.P.R. 287, ¶ 18 (2010) (explaining that ICE and CBP 

are part of one agency—DHS). Congress’s stated purpose for establishing DHS was to provide “for the common 

defense by uniting under a single department those elements within the government whose primary responsibility 

is to secure the United States homeland.” H.R. Rep. 107-609, at 63 (2002 U.S.C.C.A.N. 1352, at 1352) 

(punctuation modified).
Chapter Two: Veterans’ Preferences in Hiring for Competitive Service Positions

A Report by the U.S. Merit Systems Protection Board 15

only one agency’s workforce and would not create a VEOA entitlement for external veterans or 

preference eligibles to be considered for the position. 

One of the most important features of MPP and the VEOA hiring authority is that, under these 

authorities, veterans and individuals with preference are not given any advantage in selection 

over other qualified candidates.79 Many preference eligibles understand that they are entitled 

to preference in selection for Federal jobs; some may not understand that the type of vacancy 

announcement for which they apply will determine not only whether their application can be 

considered, but also whether any selection preference can be used. Competitive examining 

requires the application of preference in selection from a referral list; MPP prohibits it.80

If an agency announces a competition using both competitive examining and MPP open to 

the entire Government (which automatically means considering VEOA applicants), and a 

qualified preference eligible applies for all announcements, the preference will be applied on 

the competitive examining list but not on the VEOA list.81 Preference eligibles who know (or 

believe) that they have blocked a list may believe something improper occurs when someone 

who has been blocked on the competitive examining list is nevertheless selected over the 

preference eligible via the MPP list. 

In DoD, in every year from FY 2005 to FY 2010, a larger percentage of external hires were brought 

in under VEOA (an authority that can be used only by veterans and preference eligibles) than 

under competitive examining (open to all qualified U.S. Citizens).82 As discussed in Chapter 

Four, in the 2010 MPS, DoD had a higher rate of perception of favoritism towards veterans 

than the rest of Government. The high use of VEOA in DoD may be one of many factors that 

influence perceptions in DoD regarding the treatment of veterans. 

VETERANS RECRUITMENT APPOINTMENT

The Veterans Recruitment Appointment (VRA) is a hiring authority established by law that 

enables agencies to appoint eligible veterans without competition to positions at any grade level 

through GS-11 or its equivalent.83 A VRA appointment is an appointment into the excepted 

79 See U.S. Office of Personnel Management, Vet Guide (explaining that “VEOA eligibles are rated and ranked 

with other merit promotion candidates under the same assessment criteria such as a crediting plan; however, 

veterans’ preference is not applied”). 

80 See Brown v. Department of Veterans Affairs, 247 F.3d 1222, 1225 (Fed. Cir. 2001); Haasz v. Department of 

Veterans Affairs, 108 M.S.P.R. 349, ¶ 10 (2008).

81 An individual with preference who is within the area of consideration for the MPP announcement based on 

his or her civilian service could be referred on the MPP list as well, but would not receive preference on the MPP 

list. 

82 U.S. Office of Personnel Management, CPDF, FY 2005-2010. 

83 38 U.S.C. § 4214. 
Chapter Two: Veterans’ Preferences in Hiring for Competitive Service Positions

16 Veteran Hiring in the Civil Service: Practices and Perceptions

service to serve in a position that is otherwise in the competitive service.84 Upon completion 

of a probationary/trial period, the individual is eligible for conversion to the competitive 

service.85 Unlike VEOA (if the agency uses MPP), agencies are never required to consider 

applicants under VRA. It is simply an option that may be used at the agency’s discretion. 

However, when a competition does occur under VRA, an additional set of rules for veteran’s 

preference in the excepted service can come into play.86 In FY 2010, 5 percent of external hires 

Government-wide were brought in under VRA (7 percent in DoD).87

Some individuals may perceive a non-competitive hiring authority that deprives other 

veterans of the opportunity to apply as a violation of veterans’ preference—particularly if the 

other veterans are entitled to a level of preference that would place them above the selectee 

on a referral list.88 At the same time, other observers may perceive it as a deprivation of an 

opportunity for non-veterans to compete and therefore an improper preference. However, the 

agency is under no obligation to make the opportunity public to solicit such applications.89

Additionally, VRA contains different requirements for eligibility than competitive examining 

or VEOA. Only some veterans are eligible for VRA, based on factors such as when they served, 

precisely where they served, and whether they were injured.90 As OPM’s Vet Guide explains, 

under competitive examining, if a veteran served during the Gulf War from August 2, 1990, 

through January 2, 1992, that individual would be eligible for veterans’ preference solely on 

84 The term “excepted service” has been used to refer to: (1) the status of a person based on the nature of his 

or her appointment authority or position (e.g. VRA or attorney); (2) a position based on the nature of the work 

(e.g. attorney or chaplain); or (3) an agency based on its mission (e.g. Federal Bureau of Investigation, Central 

Intelligence Agency). 

85 The probationary period in the excepted service is typically referred to as a “trial period,” however, the law 

authorizing VRA appointments and conversions refers to this period as a probationary period, despite the fact that 

it occurs during an excepted service appointment. 38 U.S.C. § 4214(b)(1)(D)(ii). For information on the use of the 

probationary period as the final assessment opportunity before an appointment is finalized, see U.S. Merit Systems 

Protection Board, The Probationary Period: A Critical Assessment Opportunity, available at www.mspb.gov/studies. 

86 See, e.g., Williams v. Department of Air Force, 97 M.S.P.R. 252, ¶ 8 (2004) (explaining veterans’ preference 

ranking order for a VRA appointment); 38 U.S.C. § 4214(b)(1)(C) (granting a preference in VRA appointments to 

veterans entitled to disability compensation); 5 C.F.R. § 302.201 (explaining the application of preference in the 

excepted service). 

87 From FY 2000 to FY 2012, the average percent of external hires in DoD brought in under this authority was 

9 percent, while for non-DoD agencies it was 3 percent. U.S. Office of Personnel Management, CPDF.

88 See 38 U.S.C. § 4214(b)(1)(C).

89 See U.S. Office of Personnel Management, Vet Guide, available at www.opm.gov/staffingportal/vetguide.asp. 

90 The categories of qualified individuals are:

(i) Disabled veterans.

(ii) Veterans who served on active duty in the Armed Forces during a war or in a campaign or expedition for 

which a campaign badge has been authorized.

(iii) Veterans who, while serving on active duty in the Armed Forces, participated in a United States military 

operation for which an Armed Forces service medal was awarded pursuant to Executive Order No. 12985.

(iv) Recently separated veterans.

38 U.S.C. §§ 4215(a)(2)(B), 4212(a)(3). 
Chapter Two: Veterans’ Preferences in Hiring for Competitive Service Positions

A Report by the U.S. Merit Systems Protection Board 17

the basis of that service. However, this veteran would not be eligible for a VRA appointment 

unless the veteran served in the actual campaign or suffered from a service-related disability.91

Another element of VRA with the potential for misunderstandings is the expiration date for 

eligibility if the veteran did not serve in a conflict and was not injured. Such a veteran may 

be eligible for a VRA appointment if his or her service was within the prior three years, while 

veterans who served in a war/campaign or who are disabled do not have their eligibility expire. 

In contrast, VEOA eligibility does not expire with the passage of time for any veteran.92 An 

individual who is eligible for VRA one month, but not eligible the next, may become confused 

about the expiration provisions and suspect that some impropriety has occurred—especially if 

he or she is still being referred for VEOA announcements. 

The VRA law also requires that veterans with less than 15 years of education hired under VRA 

receive training, regardless of the skills of the veteran or the needs of the position into which 

the veteran is hired.93 A veteran who is ordered to attend training, while others in the exact 

same position (with perhaps less knowledge) are not required to attend, may perceive the order 

as an implication that veterans are considered less capable than their peers.94 Conversely, when 

other civilian employees see that only the veteran is being given the training, they may see that 

use of resources as a form of favoritism. 

VRA can be a helpful authority for agencies to hire veterans quickly. However, because 

VRA offers so many opportunities for perceptions of improprieties—and those perceived 

improprieties appear particularly serious because of the non-competitive nature of the 

authority—it is important that agencies use this authority with caution and transparency. When 

using VRA, agencies should take steps to help those who observe the process to understand the 

unique attributes of this law. 

91 See U.S. Office of Personnel Management, Vet Guide, available at www.opm.gov/staffingportal/vetguide.asp.

92 Compare 38 U.S.C. § 4214(a)(2)(B) and 5 C.F.R. § 307.104(d) with 5 U.S.C. § 3304(f). 

93 38 U.S.C. § 4214(b)(1)(D)(i).

94 Expending resources on unnecessary training may also be seen as highly problematic by individuals who feel 

they need training to improve their knowledge or skills but are told that training funds are limited. See U.S. Merit 

Systems Protection Board, Managing Public Employees in the Public Interest: Employee Perspectives on Merit Principles 

in Federal Workplaces, at 21-23, available at www.mspb.gov/studies.
Chapter Two: Veterans’ Preferences in Hiring for Competitive Service Positions

18 Veteran Hiring in the Civil Service: Practices and Perceptions

Agencies also should remind their decision-makers that the PPPs apply to the excepted service 

as well as to the competitive service.95 It is a PPP to knowingly violate a veteran’s preference 

right.96 Thus, deliberately ignoring an application from a veteran with preference is as improper 

for a VRA application as it is for a competitive examining application. Furthermore, it is a PPP 

to “define the scope or manner of competition or the requirements for any position for the 

purpose of improving or injuring the prospects of any particular person for employment.”97

Thus, the reason why management chooses to use the VRA authority is pertinent to the 

propriety of the action.98

Prior research conducted by MSPB indicates that the use of VRA frequently has not been the 

result of a deliberative process. In the survey conducted for our 2008 report, Appointment 

Authorities: Cutting through the Confusion, we asked supervisors who reported being involved 

in the hiring process from which authorities they had accepted candidates. For VRA appointees, 

39 percent of their supervisors stated they did not accept VRA applications. This means that 

approximately 4 out of every 10 supervisors who were involved in the selection process for a 

VRA hire may not have known that they were using an authority that had a severely limited 

applicant pool.99

THIRTY PERCENT DISABLED VETERANS APPOINTMENT

The law permits an agency to “make a noncompetitive appointment leading to conversion to 

career or career-conditional employment of a disabled veteran who has a compensable serviceconnected disability of 30 percent or more.”100 As with VRA, this authority is an option for 

agencies, but its use is never required by law (unlike preference in competitive examining or 

the consideration of VEOA applicants when hiring from outside the agency).

95 5 U.S.C. § 2302(a)(2)(B).

96 5 U.S.C. § 2302(b)(11). 

97 5 U.S.C. §§ 2302(b)(6), (11) (internal punctuation modified); see Special Counsel v. Lee, 114 M.S.P.R. 57, 

¶ 21 (2010) (explaining that it is not legally permissible to select one specific type of hiring authority over another 

if the intent is to afford preferential treatment to an individual), rev’d in part on other grounds in Beatrez v. Merit 

Systems Protection Board, 413 F. App’x 298 (Fed. Cir. 2011). For more information on the prohibited personnel 

practices, see our report, Prohibited Personnel Practices: Employee Perceptions, available at www.mspb.gov/studies. 

98 In the narrative responses on the Fair and Open Competition Survey, some respondents indicated that they 

had observed agency officials using non-competitive hiring authorities in order to be able to hire friends instead of 

more qualified candidates, with misuse of the VRA listed as one example of this activity.

99 U.S. Merit Systems Protection Board, Federal Appointment Authorities: Cutting through the Confusion, at 22, 

available at www.mspb.gov/studies. It is possible, and perhaps probable, that there were other authorities used in 

addition to the VRA that may have brought in more candidates. However, because many supervisors did not even 

know they had used VRA at all, we could not reliably use the survey data to determine what other authorities may 

have been used.

100 5 U.S.C. § 3112. 
Chapter Two: Veterans’ Preferences in Hiring for Competitive Service Positions

A Report by the U.S. Merit Systems Protection Board 19

Unlike VRA, which involves permanent appointments and requires the completion of a 

probationary/trial period before conversion to the competitive service, the 30 percent disabled 

veteran authority (DVA) appointment begins as a time-limited appointment, but the individual 

may be converted to the competitive service “at any time.”101 

However, as with VRA, because the 30 percent DVA process is non-competitive, it may provide 

opportunities for perceptions of improprieties, including perceptions that other preference 

eligibles have been denied an opportunity to compete for a position. Additionally, because this 

authority begins as a temporary or term appointment, and then non-competitively becomes a 

permanent appointment, it may appear as if the agency engaged in a subterfuge. Because the 

individual will be on board when converted to the permanent position, there may be more 

opportunities than with other external appointment authorities for co-workers to witness the 

unusual nature of the appointment and draw conclusions about its propriety. As with all of the 

hiring authorities, education may be needed to counter those perceptions. And, as with the 

other hiring authorities, agencies should be vigilant to ensure that the motives behind the use 

of this authority do not constitute the commission of a PPP. 

CERTIFIED FROM A TRAINING PROGRAM

Under 5 C.F.R. § 315.604, when a disabled veteran has satisfactorily completed an approved 

course of training conducted under chapter 31 of Title 38, any agency may appoint the veteran 

non-competitively to the position or class of positions for which the veteran was trained. The 

individual then may be converted to the competitive service.

This hiring authority was among the first exceptions to competitive examining made by OPM 

following the Civil Service Reform Act of 1978 (CSRA).102 Unlike competitive examining, 

VEOA, and VRA, this hiring authority cannot be explicitly found in the U.S. Code, but Title 

5 does—with certain limitations—grant OPM the authority to promulgate regulations for the 

excepted service.103 We asked OPM to identify which statute authorizes the regulation at 5 

C.F.R. § 315.604; OPM declined to do so.104

101 U.S. Office of Personnel Management, Vet Guide, available at www.opm.gov/staffingportal/vetguide.

asp; see 5 C.F.R. § 315.707 (competitive service status is “automatically” acquired by such an individual upon 

completion of the probationary period).

102 See 44 Fed. Reg. 10041, 10044 (Feb. 16, 1979). 

103 5 U.S.C. §§ 3302, 1104(a)(1). 

104 U.S. Office of Personnel Management, Reply to MSPB’s Veteran Questionnaire, Apr. 2, 2013 at 1-2. 

A Report by the U.S. Merit Systems Protection Board 21

“When considering civil service reform, it is useful to remember that the federal government is not the ‘single 

employer’ it is widely reputed to be.”105

A substantial portion of the civil service operates under a variety of exceptions to Title 5, 

creating a complex patchwork of rules separate from the already complicated rules that apply 

to the Title 5 competitive service.106 

The “excepted service” can refer to agencies, positions, or hiring authorities.107 Certain 

agencies, such as the Central Intelligence Agency (CIA), are excepted from the rules for 

veterans’ preference.108 Some positions, such as chaplains or attorneys, are in the excepted 

service regardless of the employing agency.109 Additionally, as explained in Chapter Two, 

there are authorities that have been used to hire individuals under excepted service rules into 

positions that would otherwise belong in the competitive service.110 This chapter discusses 

exceptions to the competitive service based upon the hiring agency or position being filled.

As shown in Figure 1 below, from FY 2000 to FY 2012, traditional competitive examining was 

used for less than a third of new appointments to permanent, full-time positions. The addition 

of the VEOA and VRA authorities—discussed in Chapter Two—brings the percentage to about 

half of new hires. For all the complexities of the statutes, regulations, and rules discussed in 

Chapter Two, they leave a large portion of Government hiring unaddressed. 

105 Government Accountability Office (GAO) (then called the General Accounting Office), The Excepted 

Service: A Research Profile, GGD-97-72 (May 1, 1997), at 1.

106 In a 1997 report, GAO reported that 48 percent of Federal civilian workers were employed outside of the 

appointment provisions of Title 5. GAO, The Excepted Service: A Research Profile, GGD-97-72 (May 1, 1997), at 1. 

107 If a position is in the excepted service under 5 C.F.R. Part 302, OPM regulations explain how veterans’ 

preference is to be applied. 5 C.F.R. § 302.201. 

108 See Central Intelligence Agency, https://www.cia.gov/careers/faq/ (explaining “that the CIA is not a 

veteran preference agency”); www.fedshirevets.gov/job/filled/index.aspx (explaining that some agencies, such 

as the CIA, “have only excepted service positions.”) See also 5 U.S.C. § 2108 (“preference eligible. . . does not 

include applicants for, or members of, the Senior Executive Service, the Defense Intelligence Senior Executive 

Service, the Senior Cryptologic Executive Service, or the Federal Bureau of Investigation and Drug Enforcement 

Administration Senior Executive Service”). 

109 5 C.F.R. § 213.3102.

110 See 38 U.S.C. § 4214 (VRA) (discussed in the last chapter). But see Dean v. Office of Personnel Management, 

115 M.S.P.R. 157, ¶ 25 (2010) (holding that the Federal Career Intern Program was invalid because the authority it 

used to hire individuals into the excepted service could only be used for positions where competitive examining was 

not practicable, yet competitive examining was also being used).

Chapter Three: Veteran Hiring 

in the Excepted Service
Chapter Three: Veteran Hiring in the Excepted Service

22 Veteran Hiring in the Civil Service: Practices and Perceptions

Figure 1: Percent of Hiring by Authority (FY 2000-2012)111

30%

5%

12%

4%

49%

Competitive Examining

VRA

VEOA

Direct Hire

All Others

EXAMPLES OF AGENCY-BASED STATUTORY HIRING AUTHORITIES 

Chapter Two addressed hiring into positions that are in the competitive service, even if the 

hiring authority is not in the competitive service and may come from a different title of the U.S. 

Code. However, some agencies in the executive branch have positions that—by statute—are 

not covered by all of the Title 5 hiring laws discussed in Chapter Two. Yet, in many of these 

agencies, there is still some form of preference that is given to veterans.

For example, the Department of State has its own appointment process for the Foreign Service. 

When seeking a position as a Foreign Service Officer, applicants first take an exam. If the 

individual passes the Foreign Service Officer’s Test, then an oral assessment is performed. If 

the individual also passes that assessment, then points are added to the register score—but not 

the same points as were used in the rule of three.112

For positions in the Department of Veterans Affairs, Veterans Health Administration (VHA), 

the VHA has discretionary authority to appoint health care personnel under 38 U.S.C. § 

7401(1) without regard to Title 5 civil service requirements, including veterans’ preference.113

111 U.S. Office of Personnel Management, CPDF, full-time, permanent workforce. 

112 The Department of State adds “0.175 for a five point standing and 0.35 for a 10 point standing.” See http://

careers.state.gov/officer/selection-process-printable#vetpref.

113 Scarnati v. Department of Veterans Affairs, 344 F.3d 1246, 1248-49 (Fed. Cir. 2003) (emphasis added).
Chapter Three: Veteran Hiring in the Excepted Service

A Report by the U.S. Merit Systems Protection Board 23

The practice of the VHA has been to “give preference to qualified disabled veterans and 

preference eligibles when qualifications of candidates are approximately equal.”114 In other 

words, veterans’ preference serves as a tie-breaker. 

Not every agency with exceptions to Title 5 rules has the flexibility to decide what form of 

preference it will grant. For example, Congress authorized the Department of Transportation 

to establish a personnel system for the Federal Aviation Administration (FAA) that is not 

subject to the provisions of Title 5, with certain enumerated exceptions.115 Because veterans’ 

preference is one of the enumerated exceptions, Title 5 veterans’ preference for competitive 

examinations applies to the selection of candidates for positions in the FAA personnel system.116

EXAMPLES OF POSITION-BASED REGULATORY HIRING AUTHORITIES 

An agency can be covered by competitive examining rules but have specific categories of positions 

that are excepted from the competitive service, such as chaplains and attorneys.117 When 

hiring for such positions, veterans’ preference applies “to the extent that it is administratively 

feasible to do so.”118 The U.S. Court of Appeals for the Federal Circuit has explained that 

“where positions are entirely exempt from the usual appointment process, it is more likely that 

the detailed requirements of [veterans’ preference] will prove to be infeasible.”119 Thus, the 

use of excepted service authorities for positions has an important effect on the preferences a 

veteran may use when seeking employment in a particular field.

Some regulations that place positions in the excepted service have been litigated and have 

case law to support their use. For example, 5 C.F.R. §  213.3202(d) places all Federal civil 

service attorneys in the excepted service. In Jarrard v. Department of Justice, the Federal 

114 Scarnati v. Department of Veterans Affairs, 344 F.3d 1246, 1249 (Fed. Cir. 2003) (internal punctuation and 

citations omitted).

115 Belhumeur v. Department of Transportation, 104 M.S.P.R. 408, ¶ 6 (2007); see 49 U.S.C. § 40122(g)(2)(B) 

(explaining that the exceptions from Title 5 do not include sections 3308–3320, relating to veterans’ preference). 

FAA’s system also applies to the Transportation Safety Administration. See Aviation and Transportation 

Security Act, Pub. L. No. 107-71 (“The personnel management system established by the Administrator of the 

Federal Aviation Administration under section 40122 shall apply to employees of the Transportation Security 

Administration”).

116 Belhumeur v. Department of Transportation, 104 M.S.P.R. 408, ¶ 7 (2007) (explaining that “[w]hile sections 

3308-3320 relating to veterans’ preference apply to the FAA, section 3330a, which grants the Board jurisdiction 

over violations of veterans’ preference rights, is not among the sections of Title 5 applicable to the FAA.”) See 49 

U.S.C. § 40122(g)(2)(B) (explaining that the exceptions from Title 5 for the FAA do not include sections 3308–

3320, relating to veterans’ preference). 

117 5 C.F.R. § 213.3102.

118 Jarrard v. Department of Justice, 669 F.3d 1320, 1323 (Fed. Cir. 2012); see 5 C.F.R. § 302.101(c) (when 

a position is in the excepted service, “each agency shall follow the principle of veteran preference as far as 

administratively feasible”); see also 5 U.S.C. § 3320 (selection “for appointment to each vacancy in the excepted 

service in the executive branch” shall be “from the qualified applicants in the same manner and under the same 

conditions required for the competitive service by sections 3308-3318 of this title.”)

119 Jarrard v. Department of Justice, 669 F.3d 1320, 1323 (Fed. Cir. 2012). For such positions, veterans’ 

preference may be used as a “positive factor.” See Patterson v. Department of the Interior, 424 F.3d 1151, 1159 (Fed. 

Cir. 2005) (holding that “this approach represents a reasonable balance between” veterans’ preference and the 

flexibilities of the excepted service).
Chapter Three: Veteran Hiring in the Excepted Service

24 Veteran Hiring in the Civil Service: Practices and Perceptions

Circuit discussed at length the reasons why attorneys are in the excepted service and held that 

traditional veterans’ preference, such as the use of points, does not apply to such positions. The 

court held that, because of the nature of attorney hiring, there was no obligation for an agency 

to consult OPM before passing over a veteran for a non-veteran when hiring attorneys.120

OTHER EXCEPTED SERVICE HIRING AUTHORITIES 

There are other situations in which hiring may occur in the excepted service—this report does 

not contain an exhaustive list. For some of these excepted service hiring situations, the rules for 

veterans’ preference can closely resemble those used in competitive examining.121 For example, 

when numerical scores are assigned, then 5 or 10 points may be added, as under competitive 

examining.122 OPM’s regulations contain instructions for three different ways in which the 

referral list may then be ordered (labeled Order A, B, or C). In addition to these three orders, 

the regulations also have instructions for ordering an excepted service professional positions 

list. Lastly, there are two options offered for ordering an unranked applicant list.123 

This chapter does not list every way in which veterans’ preference may apply in the excepted 

service. However, it illustrates how challenging it may be for a veteran (or agency) to identify 

the preference that may be owed to an individual and to determine how that preference should 

be applied. 

The different sets of rules for positions within the competitive service, with the excepted 

service rules added to that, results in a patchwork of laws and rules that are challenging to 

understand. There are so many factors about the person applying, the position for which he 

or she is applying, the authorities being used, and the agency in which the positions exist, that 

the system is beyond unwieldy.124

Which preferences a veteran should have and when they should be given are questions for 

Congress and the President. However, we recommend that the system be made simpler for 

veterans and non-veterans to understand and for agencies to administer. 

120 Jarrard v. Department of Justice, 669 F.3d 1320, 1324-26 (Fed. Cir. 2012). 

121 See 5 U.S.C. § 3320 (“The nominating or appointing authority shall select for appointment to each 

vacancy in the excepted service in the executive branch and in the government of the District of Columbia from 

the qualified applicants in the same manner and under the same conditions required for the competitive service 

by sections 3308–3318 of this title.”) See also 5 C.F.R. Part 302 (containing rules for veterans’ preference in the 

excepted service).

122 5 C.F.R. § 302.201. 

123 5 C.F.R. § 302.304. 

124 In its 2003 report on hiring processes, GAO stated, “There is widespread recognition that the current 

federal hiring process all too often does not meet the needs of agencies in achieving their missions, managers in 

filling positions with the right talent, and applicants for a timely, efficient, transparent, and merit-based process. 

Numerous studies over the past decade have noted problems with the federal hiring process.” GAO noted MSPB’s 

own findings that “overly complex and ineffective hiring authorities” was a key problem with Federal hiring. 

Government Accountability Office, Human Capital, Opportunities to Improve Executive Agencies’ Hiring Processes, 

GAO-03-450, May 2003, Highlight Sheet, 12 (citing U.S. Merit Systems Protection Board, Making the Public 

Service Work: Recommendations for Change, Washington, D.C.: September 2002). 
A Report by the U.S. Merit Systems Protection Board 25

Chapter Four: Perceptions 

Regarding Veteran Hiring

“Veterans’ hiring preferences represent an awkward—and, many argue, unfair—exception to the widely shared 

view that merit and merit alone should prevail in the employment policies of government. After a war, such 

laws have been enacted virtually without opposition. During peacetime, they inevitably have come to be viewed 

in many quarters as undemocratic and unwise. Absolute and permanent preferences. . . have always been 

subject to the objection that they give the veteran more than a square deal.”125

There is a saying that “perceptions shape reality.” A better way to put it might be that perceptions 

shape how people view events, and those views affect the decisions that people may make 

in response to those events as well as to future events. Perceptions are also one potential 

indicator of reality. If many people have the same perception, they may not all be correct, 

but the accuracy of a conclusion held by multiple witnesses may be much greater than that 

of a single individual.126 As a result, employee perceptions of inappropriate actions related to 

veterans matter because: (1) they may indicate that actual improprieties have occurred; and 

(2) those perceptions—regardless of their accuracy—may affect the viewers’ relationships with 

their employer. 

FEDERAL EMPLOYEE PERCEPTIONS OF IMPROPRIETIES

In our MPS 2010, we asked respondents whether they had observed, been personally affected 

by, or had not observed: (1) a knowing violation of veterans’ preference or protection laws; or 

(2) inappropriate favoritism towards a veteran.

The answer options were: 

• I was personally affected by this;

• I observed this but was not personally affected;

• This did not occur; or

• Don’t Know/Can’t Judge

125 Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 280-81 (1979).

126 James Surowiecki, The Wisdom of Crowds: Why the Many Are Smarter than the Few and How Collective 

Wisdom Shapes Business, Economies, Societies and Nations, New York: Doubleday (2003) at 4-5 (describing 

experiments in which responses from large groups led to more accurate answers than responses from single 

individuals).
26 Veteran Hiring in the Civil Service: Practices and Perceptions

Chapter Four: Perceptions Regarding Veteran Hiring

The responses of “Don’t Know/Can’t Judge” have been removed from the data to allow for 

comparisons of responses from those who had perceptions. Except where otherwise indicated, 

the responses “I was personally affected by this,” and “I observed this but was not personally 

affected,” have been combined into a single category to indicate a perception of an occurrence.127

As can be seen in Table 1 below, more respondents reported perceptions of inappropriate 

favoritism towards veterans than reported perceptions of knowing violations of veterans’ 

preference or protection laws.128 The total difference between these two questions was outside 

the margin for error.129

Table 1: Perceptions of Violations of Veterans’ Preference/Protection or Favoritism towards Veterans130

An official in my organization has... Happened to me I saw this Total

...knowingly violated a lawful form of 

veterans’ preference or protection laws.

1.4% 3.1% 4.5%

...inappropriately favored a veteran. 1.5% 5.0% 6.5%

Readers should bear in mind the relatively small number of respondents that perceive either 

inappropriate favoritism towards veterans or violations of veterans’ preference rights.131 As 

shown in Figure 2 below, knowing violations of a veterans’ preference requirement had one of 

the lowest perception rates of all the PPPs, and inappropriate favoritism toward veterans—while 

127 Please see the Methodology section in Chapter One for information about the sampling and response rates 

for the MPS and other surveys discussed in this report. 

128 The question was phrased to require that the violation be knowing because the 11th prohibited personnel 

practice involves the knowing violation of veterans’ preference or a veterans’ protection law. See 5 U.S.C. § 2302(b)

(11). For more on the prohibited personnel practices, see our recent report, Prohibited Personnel Practices: Employee 

Perceptions, available at www.mspb.gov/studies. 

129 The margin for error for both of these items was +/-0.47 percent with a 95 percent confidence interval, 

meaning we can be 95 percent confident that the larger population represented by the survey population would 

give responses that are no more than 47/100ths of a percent distant from the data we report.

130 Data is from the MPS 2010. 

131 The comparatively small number of employees reporting concerns about veteran hiring does not mean 

that efforts should not be made to improve the system. In a survey designed to elicit responses representative of 

a workforce of approximately 1.7 million employees, 6.5 percent of respondents represents more than 100,000 

employees and 4.5 percent represents over 75,000. Additionally, as noted in a GAO report, the hiring system as 

a whole has problems beyond perceptions related to veterans’ preference. See Government Accountability Office, 

Status of Efforts to Improve Federal Hiring, GAO-04-796T, Jun. 7, 2004, at 2 (explaining that “Congress, OPM, and 

agencies have recognized that federal hiring has needed reform” and that “additional attention is needed”); see also

Government Accountability Office, Human Capital, Opportunities to Improve Executive Agencies’ Hiring Processes, 

GAO-03-450, May 2003.
A Report by the U.S. Merit Systems Protection Board 27

Chapter Four: Perceptions Regarding Veteran Hiring

not a direct PPP—was also less common than most of the PPPs.132 However, these negative 

perceptions are important for the merit principles and prohibited personnel practices and can 

have a real effect on a workforce of more than a million people.

Figure 2: Percent of Respondents Reporting Perceptions of Particular PPPs133

13.2%

2.3%

13.6%

7.0%

22.0%

12.2%

8.1%

11.1%

7.6%

4.5%

6.5%

0.0% 5.0% 10.0% 15.0% 20.0% 25.0%

B2 - Improper Recommendations

B3 - Coercion of Politics

B4 - Obstruction of Competition

B5 - Inuencing Individuals to Withdraw

B6 - Manipulation of Competition

B7 - Nepotism

B8 - Whistleblowing Reprisal

B9 - Non-Whistleblowing Reprisal

B10 - Discrimination for O-Duty Conduct

B11 - Violation of Veterans' Preference

Inappropriate Favoritism of Veterans

When examining this data, it is important to recognize that a perception is not the same as a 

proven fact. In general, it is difficult to use perception data to determine actual rates of PPPs 

because most PPPs require an element of motive, and while observers can use circumstantial 

evidence to reach assumptions about motive, such assumptions may be erroneous. Additionally, 

the veterans’ preference PPP requires that the offender’s violation be done knowingly. In many 

132 Of the 18 questions on the MPS 2010 that would directly implicate a prohibited personnel practice, 

the following were the only ones perceived less often than a knowing violation of veterans’ preference rights: 

(1) discrimination in favor or against someone in a personnel action based upon marital status (95.8% not 

observed); (2) discrimination in favor or against someone in a personnel action based upon religion (96.7%); 

(3) discrimination in favor or against someone in a personnel action based upon political affiliation (96.8%); and 

(4) trying to pressure someone to support or oppose a particular candidate or party for elected office (97.7%). U.S. 

Merit Systems Protection Board, Prohibited Personnel Practices: Employee Perceptions, at 35-36, available at www.

mspb.gov/studies. 

133 Data is from the MPS 2010. The numbers on this chart correspond to their numbering in 5 U.S.C. 

§ 2302(b). This chart does not show perceptions for 5 U.S.C. § 2302(b)(1) because our survey divided that PPP 

into seven different questions. For results for 5 U.S.C. § 2302(b)(1)-(b)11, see U.S. Merit Systems Protection 

Board, Prohibited Personnel Practices: Employee Perceptions, at 35-36, available at www.mspb.gov/studies. Section 

2302(b)(13) was not addressed by the survey because it had not yet been enacted. See Whistleblower Protection 

Enhancement Act of 2012, Pub. L. No. 112-199, 126 Stat. 1465, § 104 (WPEA) (adding a thirteenth PPP that 

prohibits non-disclosure policies or forms that conflict with whistleblower protection laws).
28 Veteran Hiring in the Civil Service: Practices and Perceptions

Chapter Four: Perceptions Regarding Veteran Hiring

cases, it may be unrealistic to expect an observer to have a complete understanding of the 

perceived offender’s knowledge level.134

Additionally, as explained in the previous chapters of this report, veterans’ preference laws are 

exceptionally complex and many people, both veterans and non-veterans, may misunderstand 

how and when these laws apply, which in turn may lead to misperceptions. Therefore, we cannot 

establish the actual frequency of these alleged abuses to a certainty using only perceptionbased data. Furthermore, even a review of a multitude of actual recruitment cases would not 

answer this question because such files could not tell us the motives behind the decisions or 

the knowledge level of the individuals making the decisions. Thus, a paper record often cannot 

prove either deliberate favoritism or a knowing violation of veterans’ preference. 

However, these perceptions are nevertheless important because they may affect other issues, 

such as employee engagement levels. Employee engagement is a heightened connection 

between employees and their work, their organization, and/or the people they work for or 

with. The greater an employee’s level of engagement, the more likely it is that the employee 

will go beyond the minimum required and expend discretionary effort to provide excellent 

performance.135 As explained in our report on the PPPs, the more that an individual believes 

he or she has observed or been affected by a PPP, the more likely it is that the individual will be 

disengaged.136 As can be seen in Figure 3 below, this pattern held true for the question on the 

11th PPP and also for the question on favoring a veteran, which is not directly a PPP but can 

take the form of various actions that are PPPs.137

134 As explained in our recent report, Preserving the Integrity of the Federal Merit Systems:  Understanding and 

Addressing Perceptions of Favoritism, the origins of perceptions of favoritism may vary and rely upon a number 

of factors. See Preserving the Integrity of the Federal Merit Systems:  Understanding and Addressing Perceptions of 

Favoritism, at 8, available at www.mspb.gov/studies. 

135 For more on the advantages of having an engaged workforce, please see our 2008 report, The Power of 

Federal Employee Engagement, available at www.mpsb.gov/studies.

136 U.S. Merit Systems Protection Board, Prohibited Personnel Practices: Employee Perceptions, at 37, available at 

www.mspb.gov/studies.

137 We recommend caution before concluding that the relationship between a particular PPP and an employee’s 

engagement level depends solely upon that PPP, because the observance of additional PPPs and other workplace 

factors can influence engagement levels. See U.S. Merit Systems Protection Board, Prohibited Personnel Practices: 

Employee Perceptions, at 39, available at www.mspb.gov/studies. These engagement scores are based on an employee 

engagement scale that consists of 16 questions about the employee’s attitude on a variety of issues. For more 

information on the reliability and validity of the engagement scale, see The Power of Federal Employee Engagement, 

Appendix A, available at www.mpsb.gov/studies. 
A Report by the U.S. Merit Systems Protection Board 29

Chapter Four: Perceptions Regarding Veteran Hiring

Figure 3: Observations of Veterans-Related Conduct and Engagement Levels138

48% 36% 16% 8% 37% 55% 40% 38% 22% 9% 37% 55% 15% 41% 44%

0%

10%

20%

30%

40%

50%

60%

Occurred Not Occurred Occurred Not Occurred

Violated Veterans Preference Inappropriately Favored a Veteran All MPS Respondents

Not Engaged Somewhat Engaged Engaged

Of those who perceived a violation of veterans’ preference/protection rights, 48 percent were 

not engaged, and of those who perceived inappropriate favoritism towards a veteran, 40 percent 

were not engaged. In contrast, in the MPS 2010 survey population as a whole, only 15 percent 

of respondents were not engaged. 

Motivation is one aspect of engagement. Motivation drives what employees do, how they do it, 

how hard they will try, and how long they will persist in a given endeavor.139 We asked employees 

if they agreed that they felt highly motivated in their work. While 71 percent of respondents 

overall agreed that they felt highly motivated, only 50 percent of those who perceived a knowing 

violation of veterans’ preference/protection agreed they were highly motivated. Of those who 

perceived inappropriate favoritism towards a veteran, only 53 percent agreed that they were 

highly motivated. 

Observers of knowing violations of preference rights or favoritism towards veterans were also 

more inclined to report that it was likely they would leave their agency.140

As explained in our report on the PPPs, one of the best ways to address perceptions of 

management improprieties is with greater transparency by management.141 The extent of these 

perceptions of inappropriate actions regarding veterans might be reduced if management did 

a better job of explaining what they do and why they do it.142 This does not necessarily mean 

138 Data is from the MPS 2010.

139 For more on motivation and its relationship to engagement, see our 2012 report, Federal Employee 

Engagement: The Motivating Potential of Job Characteristics and Rewards, available at www.mspb.gov/studies. 

140 For perceived violations of veterans’ preference, 46% of observers indicated it was likely they would leave 

the agency compared to 36% of observers of alleged preference towards veterans. The average for MPS respondents 

on the whole was 22% reporting that it was likely they would leave their agency. 

141 U.S. Merit Systems Protection Board, Prohibited Personnel Practices: Employee Perceptions, at 39, available at 

www.mspb.gov/studies. 

142 When explaining what the agency has done and why, it may be necessary to limit the information released 

in order to protect the crediting plan for future use. 
30 Veteran Hiring in the Civil Service: Practices and Perceptions

Chapter Four: Perceptions Regarding Veteran Hiring

discussing the matter with employees who show no interest in the matter, but rather means 

being alert for signs of interest and making it clear to employees that they are welcome to ask 

questions about what happened and why.

Not all employees trust the explanations that they are given, but, in the absence of such 

explanations, the influence of conjecture becomes more powerful.143 Additionally, the 

knowledge that officials can be called upon to explain what has occurred may dissuade some 

officials who might be tempted to deliberately engage in inappropriate processes.

However, when engaging in such communications, management must be cognizant of the 

provisions of the Privacy Act and its limitations on releasing information about individuals. 

“No agency shall disclose any record which is contained in a system of records by any means 

of communication to any person, or to another agency, except pursuant to a written request 

by, or with the prior written consent of, the individual to whom the record pertains,” with 

certain enumerated exceptions, such as situations covered by the Freedom of Information Act 

(FOIA).144 Thus, management must be careful to discuss what it did without going into detail 

about the specific history of individuals to which it applied what it did—unless the information 

is considered to be in the public domain or the agency first obtains permission in writing from 

those individuals.145

DEPARTMENT OF DEFENSE EMPLOYEES’ PERCEPTIONS

DoD employees have slightly different perceptions from most other Federal employees with 

regard to how well their officials ensure that veterans receive the preferences to which they 

are entitled and avoid inappropriate favoritism.146 Also, as explained in Chapter Five, DoD 

operates under a special law—that applies only to DoD—which places restrictions on the 

143 Use of the appeals or grievance processes are not adequate substitutes for resolving concerns as a part of 

the management-employee relationship for a multitude of reasons, including but not limited to: (1) adversarial 

processes can damage relationships; (2) in many situations, non-selection is not an appealable or grieveable event 

(particularly for non-veterans); and (3) even when an avenue for redress is available, not every employee will opt to 

exercise it. 

144 5 U.S.C. § 552a(b); see 5 U.S.C. § 552.

145 See Tripp v. Department of Defense, 193 F. Supp. 2d 229, 236 (D.C. Dist. 2002) (holding that the names, 

titles, and salaries of public employees are information generally in the public domain). But see Long v. Office of 

Personnel Management, 692 F.3d 185, 192 (2nd Cir. 2012) (holding that when the work of an agency or position 

is sensitive in nature, there is a “cognizable privacy interest” that can warrant withholding employee names in the 

FOIA context).

146 MPS 2010 data for DoD consists of a combination of survey responses from civilian employees of the 

Army, Navy, Air Force, and other elements within DoD. The “DoD other” category includes the following 

organizations: Office of the Secretary of Defense; Organization of the Joint Chiefs of Staff; Defense Information 

Systems Agency; Defense Security Cooperation Agency; Defense Logistics Agency; Defense Contract Audit 

Agency; Defense Security Service; Defense Advanced Research Projects Agency; Department of Defense Education 

Activity; Washington Headquarters Services; Defense Legal Services Agency; Office of Inspector General; 

Missile Defense Agency; Defense Technology Security Administration; Defense Commissary Agency; Defense 

Finance and Accounting Service; Defense Human Resources Activity; Defense Prisoner of War/Missing Personnel 

Office; Defense Health Agency; Defense Threat Reduction Agency; Defense Contract Management Agency; 

Pentagon Force Protection Agency; Department of Defense Test Resource Management Center; National Defense 

University; Defense Technical Information Center; Business Transformation Agency; and Defense Media Activity. 
A Report by the U.S. Merit Systems Protection Board 31

Chapter Four: Perceptions Regarding Veteran Hiring

hiring of newly-retired military members. For DoD, perceptions regarding the restriction law 

are a part of the larger story of how the treatment of veterans in the civil service is perceived. 

As noted earlier, Government-wide, 4.5 percent of survey respondents indicated that they 

observed or were affected by an official knowingly violating a lawful form of veterans’ preference 

or protection laws. At the same time, 6.5 percent reported that they observed or were affected 

by inappropriate favoritism towards a veteran. 

However, as shown in Table 2 below, DoD employees are more likely than others to believe that 

they have observed or been affected by a violation of preference, and also are more likely than 

others to report observing or being affected by inappropriate favoritism of a veteran.

Table 2: Comparison of Perceptions Regarding Treatment of Veterans in DoD and Non-DoD Agencies

An official in my organization has... Non-DoD DoD

...knowingly violated a lawful form of veterans’ preference 

or protection laws.

4.0% 5.3%

...inappropriately favored a veteran. 5.5% 8.0%

It is important to recognize that in DoD, a greater percentage of the civilian workforce are 

veterans compared to the composition of most agencies, and thus it is to be expected that 

there would be more opportunities for employees to form a perception regarding how veterans 

are treated.147 However, it is problematic that favoritism perceptions are disproportionate to 

perceptions of violations of veterans’ preference.

A survey respondent’s place within the chain of command appears to bear a relationship to his 

or her perceptions of both inappropriate favoritism and knowing violations of veterans’ rights. 

As can be seen in Figure 4 below, in DoD, non-supervisors have negative perceptions of these 

issues more often than team leaders, who have them more often than supervisors, who, in turn, 

perceive improprieties more often than managers. However, the rate at which the perceptions 

drop differs greatly for these two issues. 

147 In FY 2012, veterans comprised 60 percent of the DoD workforce, but only 34 percent of the non-DoD 

Federal workforce. Source: U.S. Office of Personnel Management, CPDF, full-time, permanent employees with a 

known veteran status.
32 Veteran Hiring in the Civil Service: Practices and Perceptions

Chapter Four: Perceptions Regarding Veteran Hiring

Figure 4: Perceptions of DoD Respondents by Supervisory Status148

6.9%

8.5%

3.4%

8.1%

3.2%

6.5%

2.0%

4.4%

0.0%

1.0%

2.0%

3.0%

4.0%

5.0%

6.0%

7.0%

8.0%

9.0%

10.0%

Knowing Violation Occurred Inappropriate Favoritism Occurred

Non-Supervisor Team Leader Supervisor Manager

The rate of perceptions of a violation of veterans’ preference rights are cut in half between 

the percentage of non-supervisors who see it and the percentage of team leaders who see it. 

One possible explanation for this steep drop in perceptions above the non-supervisory level 

may be the complexity of the veterans’ preference laws and the extent to which those with the 

responsibility to manage the workforce understand the laws. A lack of understanding by line 

employees as to what is being done and why may lead to assumptions of improprieties. 

Yet, for inappropriate favoritism towards veterans within DoD’s civil service, the drop in 

perceptions is much less dramatic, with both team leaders and supervisors perceiving it almost 

as often as non-supervisors. Because supervisors are responsible for implementing many 

personnel decisions, their perceptions that such decisions may be based upon inappropriate 

favoritism are particularly disconcerting. Additionally, as shown in Figure 4, both supervisors 

and managers in DoD perceive inappropriate favoritism at twice the rate that they perceive 

knowing violations of veterans’ preference. Thus, it seems plausible that something other than 

misunderstanding of the rules may be a cause for some of these perceptions. The people in the 

best position to know what the agency is doing and why are saying there is a problem. 

148 Data is from the MPS 2010.
A Report by the U.S. Merit Systems Protection Board 33

Chapter Four: Perceptions Regarding Veteran Hiring

We cannot determine from multiple choice survey questions precisely why these perceptions 

regarding inappropriate favoritism towards veterans exist or why they continue so far up the 

chain of command in DoD. We are also unable to firmly establish the extent of any connection 

between these perceptions of inappropriate favoritism and the long-term use of the national 

emergency exception to the 180-day rule for hiring retired service members discussed in 

Chapter Five.149

However, it is important for DoD to explore why some of their employees perceive inappropriate 

favoritism towards veterans at these rates.150 We recommend that, moving forward, DoD 

agencies regularly use their own surveys, exit interviews, and personnel action databases to 

monitor the situation and measure the effects of any changes in policies or practices.

HUMAN RESOURCES PERCEPTIONS

As a part of our recent study into the extent to which competition for Federal positions is fair 

and open, we asked HR staff about their experiences, including those related to hiring veterans. 

This data helps shed some light on the issue of perceptions of denials of veterans’ preference 

rights. 

In the fair and open competition survey (FOCS), we asked HR staff how important various 

priorities were in their work unit. As shown in Figure 5 below, of those who had an opinion 

regarding their organizations’ hiring priorities, 79 percent stated that hiring veterans was 

important, whereas only 50 percent stated the same emphasis was placed on internal hiring, 

and 41 percent indicated that level of emphasis was placed on external hiring. The most 

common priority, however, was to hire the “best candidate” (92 percent). 

149 We did not specifically ask about the 180-day rule on any of our surveys and thus cannot measure 

the extent of its influence on perceptions. However, there were respondents on both the FOCS and MSS who 

mentioned this concern. Their unprompted mention of such a specific policy drew our attention. 

150 After we provided our 2010 MPS data to the Department of the Army, we were contacted by Army 

researchers who were assigned to look at this issue. We commend the Army for its commitment to exploring this 

matter. 
34 Veteran Hiring in the Civil Service: Practices and Perceptions

Chapter Four: Perceptions Regarding Veteran Hiring

Figure 5: Hiring Priorities Reported by HR Offices151

8%

9%

5%

4%

51%

41%

15%

4%

41%

50%

79%

92%

0% 10% 20% 30% 40% 50% 60% 70% 80% 90% 100%

Fill with External Hires

Fill with Internal Hires

Hire Veterans

Hire Best Candidate

In your work unit, how important are the following activities?

 Important Neither Important nor Unimportant Unimportant

For internal candidates, the greater emphasis placed on hiring veterans may not seem fair. 

At the same time, preference eligibles may infer that inadequate importance was given to 

protecting veterans’ preference, because hiring the “best” candidate was important to more 

HR offices than hiring a veteran. Any set of priorities may be subject to favor or disfavor 

depending on how those priorities affect the observer.

Given the importance that was placed on hiring veterans, it is not surprising that guidance 

regarding veterans’ preference was the most common type of guidance that HR specialists 

reported giving to managers, with 71 percent of HR survey respondents stating that they 

“always” or “most of the time” gave such guidance.152

Yet, educating managers regarding veterans’ preference may not have always worked in the 

veterans’ favor. When asked why more vacancies were not open to all sources, 28 percent of 

151 Data is from the FOCS.

152 The other types of guidance that were reported as being given either always or most of the time were: areas 

of consideration (68%); methods of recruitment (68%); sources of recruitment (66%); fair and open competition 

(65%); prohibited personnel practices (54%); and favoritism (41%). 
A Report by the U.S. Merit Systems Protection Board 35

Chapter Four: Perceptions Regarding Veteran Hiring

HR specialists agreed that a factor may have been concern that a veteran might prevent the 

hiring of a different candidate by “blocking” the list.153 In a 1992 report on hiring veterans, 

the Government Accountability Office (GAO) reviewed 1,136 certificates, of which 357 had a 

veteran at the top of the list. GAO reported that 71 percent of the certificates with a veteran 

at the top were returned without a selection, while only 51 percent were returned with no 

selection when a non-veteran topped the list.154

Agencies have the responsibility to ensure that lawful preferences are not deliberately 

withheld, unauthorized advantages are not granted, and that the process is as transparent as 

possible to reduce any perceptions that may not be accurate. Agencies should ensure that 

job descriptions accurately describe what is needed for their positions and include in their 

vacancy announcements any selective factors.155 Qualifications should be assessed fully and 

fairly using valid testing methods. 

If this is done properly, then a veteran who is able to block the list should also be able to perform 

in the position. If for any reason the veteran cannot perform in the position, the rules have 

a “pass over” procedure to address such situations.156 However, the extent to which veterans 

should be given preferences in hiring is a public policy question that belongs to Congress and 

the President—not individual managers.157

HIRING PRACTICES STRATEGIES

There is no ideal solution to prevent real and perceived discrimination through the use of 

multiple lists under the current laws, other than for management to explain the choices they 

made. To recruit one list at a time would unreasonably delay management’s ability to hire, and to 

select only one hiring authority for each recruitment action could restrict management’s ability 

to obtain a quality pool of applicants. Unless Congress chooses to change how recruitment 

occurs in the Federal Government, using multiple lists with greater transparency may be the 

best solution. Even with reformed hiring authorities, we expect that transparency would be 

desirable. 

153 As explained in Chapter Two, the presence of a veteran on a list can prevent the selection of a non-veteran.

154 Government Accountability Office, Federal Hiring: Does Veteran’s Preference Need Updating? GAO/GGD92-53, Mar. 1992, at 4, 27, available at www.gao.gov/assets/160/151726.pdf. (At the time, GAO was known as the 

General Accounting Office.) 

155 A selective factor is a specific qualification, beyond the minimum requirements established by OPM, 

which is absolutely required for a job because a person cannot perform successfully in the position without 

such qualification. A particular knowledge, skill, or ability can be used as a selective factor. See U.S. Office of 

Personnel Management, General Schedule Qualification Policies, available at www.opm.gov/policy-data-oversight/

classification-qualifications/general-schedule-qualification-policies.

156 See U.S. Office of Personnel Management, Delegated Examining Operations Handbook, at 159-63, 

available at www.opm.gov/deu. 

157 The Partnership for Public Service interviewed 55 Chief Human Capital Officers and reported that “nearly 

half expressed misgivings about the process for providing [veterans’] preference and were concerned about conflicts 

with other public policy objectives and the original intent of the law.” Partnership for Public Service, Bracing for 

Change: Chief human capital officers rethink business as usual, at 4, available at http://ourpublicservice.org/OPS/

publications/download.php?id=209. 
36 Veteran Hiring in the Civil Service: Practices and Perceptions

Chapter Four: Perceptions Regarding Veteran Hiring

We encourage agencies to: (1) avoid PPPs by preventing actions based on improper motives; 

and (2)  ensure that people understand why the agency is doing what it is doing as well as 

informing concerned observers of the specific hiring authority being used so that interested 

individuals can see the rules for themselves. The mere act of indicating the source of the 

authority—even if employees do not choose to read the laws or regulations for themselves—

may be sufficient to assure some employees that management is following legitimate rules for 

conducting their activities. Achieving perfect trust and understanding in all cases may not 

be a reasonable expectation. But, given that honest communication can sometimes help, we 

encourage agencies to try.
A Report by the U.S. Merit Systems Protection Board 37

“In the Department of Defense. . . we have a special obligation to assure that consideration of retired military 

personnel for civil service positions is extended on an equitable basis and that there is strict compliance in spirit 

and in procedure with the fundamental merit system principle of open public competition. Such an approach 

is essential not only in the interests of the public and of career civil service employees, but in order to protect 

retired military personnel from unwarranted allegations that they obtained their positions through influence 

based upon prior military service.”158

Most laws pertaining to hiring veterans in the Federal Government are designed to provide 

a preference to the veteran or a relative of the veteran in recognition of the service that the 

veteran provided to the Nation. There is one law that is a notable exception and it applies 

only to DoD. This chapter discusses that law and its application. Our goal is to note the 

extent to which provisions in the law have not been active, the perceptions that may have been 

influenced by that lack of operation, and recommendations for moving forward. 

For 50 years, there has been a law that restricts the appointment within DoD of a retired 

member of the armed forces within 180 days of his or her retirement—the so-called “180-day 

rule.”159 However, this law contains exceptions to its restrictions.160

To understand this law and its intent, it is necessary to understand its history. The law 

began as a policy memorandum within DoD. The Gilpatric memorandum (named for the 

Deputy Secretary of Defense who signed it) was issued in 1961 in order to ensure that retired 

military members were not given civil service positions for reasons other than merit. The 

Gilpatric memorandum instructed, among other things, that any “[a]ction to employ a retired 

military person at an installation at which he was stationed for duty within the 6 months’ 

period immediately preceding the proposed appointment will require prior approval by the 

Secretary of the military department concerned or his designee for the purpose.”161 A request 

for such approval had to be accompanied by a statement that management had: (1) given 

full consideration to career employees before selecting the recently retired service member; 

(2) applied veterans’ preference laws to any selection from a civil service register; (3) made 

reasonable efforts to seek applicants from all possible sources and not written the qualification 

158 Roswell L. Gilpatric, Memorandum: Employment of Retired Military Personnel, Jul. 5, 1961, available in 

Hearings Before the Committee on Post Office and Civil Service, H.R. 7381, Jul.-Aug. 1963 at 149.

159 See Pub. L. No. 88-448 (1964); 5 U.S.C. § 3326(b) (2014).

160 5 U.S.C. § 3326(b).

161 Roswell L. Gilpatric, Memorandum: Employment of Retired Military Personnel, Jul. 5, 1961, available in 

Hearings Before the Committee on Post Office and Civil Service, H.R. 7381, Jul.-Aug. 1963 at 149. A copy of this 

memorandum and the current statute that was developed from it is in Appendix D.

Chapter Five: Restrictions on 

Hiring Retired Service Members 

into the Department of Defense 
38 Veteran Hiring in the Civil Service: Practices and Perceptions

Chapter Five: Restrictions on Hiring Retired Service Members into the Department of Defense 

requirements in a manner designed to provide an advantage to the individual; and (4) not held 

the position vacant pending the retirement of a preferred individual.162

In 1963, Congress considered a law to codify the principles of the Gilpatric memorandum. 

During hearings on the bill, the House heard testimony regarding abuses within DoD, which 

included allegations of management: 

• Creating a hostile environment to force civilians out of positions so that the 

jobs could be given to desired military retirees;

• Abolishing positions to remove their civilian incumbents and then 

re-establishing them soon thereafter to place retired military into those same 

positions; 

• Re-writing civil service position descriptions to ensure that only prior 

military members could qualify; and

• Holding positions vacant until desired military candidates retired.

One Congressman stated that he “heard it said that often the retiree writes the specifications to 

fit himself and then applies for the job.”163

In 1963, the Chairman of the Civil Service Commission (CSC) testified that he believed 

the Gilpatric memorandum was “sound public policy” and favored “reinforcing” it but also 

explained that he preferred to keep it as an “executive action” rather than a law.164 Despite 

this recommendation, Congress chose not only to codify the Gilpatric memorandum in 1964 

but to expand it.165 Where the Gilpatric memorandum gave Department secretaries or their 

designees the authority to waive the restriction on hiring a recently retired military member, 

the statute assigned this authority to the CSC for any position in the competitive service, and 

following the CSRA, to OPM. The law also applied the restriction to the entirety of DoD and 

not just to installations where the retiring military member had served recently.166

As explained in the legislative history of the 180-day law, the purpose of this section of P.L. 

88-448 was to:

162 Roswell L. Gilpatric, Memorandum: Employment of Retired Military Personnel, Jul. 5, 1961, available in 

Hearings Before the Committee on Post Office and Civil Service, H.R. 7381, Jul.-Aug. 1963 at 149. 

163 Hearings Before the Committee on Post Office and Civil Service, H.R. 7381, Jul.-Aug. 1963 at 29, 

145, 157-59. (The Chairman of the Civil Service Commission, in testimony, assured the Congressman that the 

Gilpatric memorandum should have prevented military members after 1961 from writing the position descriptions 

of their future jobs by limiting the placement of an individual at the same installation immediately following his or 

her retirement. Id. at 29.)

164 Testimony of John W. Macy, Jr., Chairman of the U.S. Civil Service Commission, Hearings Before the 

Committee on Post Office and Civil Service, H.R. 7381, Jul.-Aug. 1963 at 35-36. 

165 See Pub. L. No. 88-448; S. Rep 88-935, Mar. 4, 1964.

166 See Pub. L. No. 88-448; S. Rep 88-935, Mar. 4, 1964.
A Report by the U.S. Merit Systems Protection Board 39

Chapter Five: Restrictions on Hiring Retired Service Members into the Department of Defense

Incorporate the principle of the Gilpatric Memorandum into the law, and expand it 

to prohibit the employment of such a person anywhere in the Department of Defense 

for a period of 6 months unless the criteria in section 204(b) are satisfied and the 

permission of the appropriate Secretary [is obtained], and if the office is in the 

competitive service, after the approval of the Civil Service Commission is secured.”167 

In other words, the Gilpatric memorandum’s requirement for approval by the Secretary 

remained, and a second level of review in the form of the CSC (later OPM) was added by this 

statute. 

As shown in Table 3, the law also modified the conditions under which a retiring service 

member could be hired within 180 days of his separation from service. 

167 S. Rep. 88-935, 1964 U.S.C.A.A.N. Vol. 2 at 2840 (verb tenses modified). Section 204(b) referred to the 

waiver criteria. 
40 Veteran Hiring in the Civil Service: Practices and Perceptions

Chapter Five: Restrictions on Hiring Retired Service Members into the Department of Defense 

Table 3: Comparison of 5 U.S.C. § 3326 and Gilpatric Memorandum

5 U.S.C. § 3326 Exception 

to Prohibition Criteria

Comparison 

to Gilpatric 

Memorandum

Waiver authorized by 

OPM and Secretary of the 

service

1. Full consideration, in accordance with 

placement and promotion procedures of the 

department concerned, was given to eligible 

career employees;

2. When selection is by other than certification 

from an established civil service register, 

the vacancy has been publicized to give 

interested candidates an opportunity to 

apply;

3. Qualification requirements for the position 

have not been written in a manner designed 

to give advantage to the retired member; 

and

4. The position has not been held open 

pending the retirement of the retired 

member.*

Similar to 

Gilpatric 

memorandum, 

but with 

the added 

requirement 

for CSC/OPM 

approval.

Hard-to-fill jobs Special pay tables that have already been created 

for the position because of difficulties hiring for 

such positions.** 

Similar to 

Gilpatric 

memorandum.

National emergency DoD is not prohibited from making such hires if “a 

state of national emergency exists.”***

This exception 

is not in the 

Gilpatric 

memorandum.

* 5 U.S.C. § 3326(c).

** Compare 5 U.S.C. § 3326(b)(2) (“the minimum rate of basic pay for the position has been increased under 

section 5305 of [Title 5]”) with Roswell L. Gilpatric, Memorandum: Employment of Retired Military Personnel, 

Jul. 5, 1961, available in Hearings Before the Committee on Post Office and Civil Service, H.R. 7381, Jul.-Aug. 

1963 at 149 (“[e]xception to this requirement for prior clearance may be made for shortage category positions for 

which advanced in-hiring rates have been approved.”) Section 5305 of Title 5 allows for special pay rates at a 

higher than normal level for positions where OPM has determined that a higher rate is necessary for reasons such 

as “rates of pay offered by non-Federal employers being significantly higher than those payable by the Government 

within the area, location, occupational group, or other class of positions under the pay system involved[.]” 

*** 5 U.S.C. § 3326(b). 
A Report by the U.S. Merit Systems Protection Board 41

Chapter Five: Restrictions on Hiring Retired Service Members into the Department of Defense

Changes in hiring authorities—most notably the addition of VEOA—have made the review 

provisions even more important than they were at the time of enactment.168 As discussed 

earlier, in DoD, in every year from FY 2005 to FY 2010, a larger percentage of external hires 

were brought in under VEOA than under competitive examining.169 

Both VEOA and competitive examining require that the selection be made from among the “best 

qualified” candidates—with the agency determining the criteria for that category provided that 

minimum qualifications have been met.170 However, unlike competitive examining, in which 

the list may be blocked by a preference eligible, any VEOA candidate who is “best qualified” 

may be selected. Thus, it is possible that an agency may set the bar much lower for VEOA 

without fear that it will result in the agency being forced to hire someone other than the desired 

candidate. Without further study, we cannot state the extent to which this may occur.171

VEOA was intended to produce more opportunities for veterans to enter the civil service, 

but, as with any flexibility, how it is used determines the extent to which it advances the goals 

of other civil service laws. VEOA can create the opportunity for highly qualified veterans to 

be selected for civil service positions. However, VEOA can also be misused by a supervisor 

to hire less-qualified compatriots—including recent military retirees—at the expense of 

better-qualified applicants, who may include preference eligible veterans who applied under a 

competitive examination.172

The waiver requirement in the DoD law, with its imposition of an outside layer of review, acts 

as a protection against blatant abuses of VEOA with respect to recent retirees. However, the 

effectiveness of such a review requirement depends upon the review actually occurring and the 

impartiality of the reviewer.

168 At the time of the CSRA, to hire a retired service member with no prior civilian service into the competitive 

service required the use of competitive examining and the rule of three. This meant that an HR official certified 

to conduct competitive examinations (under either OPM’s direct authority or DEU) had to find that the individual 

was one of the three top candidates, after preference was applied. 

169 U.S. Office of Personnel Management, CPDF, FY 2005-2010.

170 5 C.F.R. § 315.611 (the VEOA selectee must be among the best qualified under merit promotion 

procedures); U.S. Office of Personnel Management, Delegated Examining Operations Handbook, at 90, available 

at www.opm.gov/deu (selection should be from among the best qualified candidates). See Ramsey v. Office of 

Personnel Management, 87 M.S.P.R. 98, ¶ 9 (2000) (holding that a VEOA candidate must meet OPM’s minimum 

qualifications); 5 C.F.R. § 335.103(b)(3) (explaining that candidates under a merit promotion plan must meet 

OPM’s minimum qualification standards); U.S. Office of Personnel Management, Vet Guide (explaining that 

VEOA eligibles are rated and ranked with other merit promotion candidates under the same assessment criteria 

such as a crediting plan).

171 A lower bar may also be set with good intentions. Seventy-one percent of respondents to the FOCS 

indicated that in their work unit it was important that they submit as many candidates as possible to selecting 

officials. Without further study, we cannot state the extent to which VEOA (and MPP) crediting plans set a lower 

bar for “best qualified” than is set for competitive examining, or management’s motives for wherever the bar is 

being set.

172 According to one HR staffer who responded to the FOCS: “When using the VEOA authority, selecting 

officials will always hire individuals who are or have just separated from military service in their organizations and 

assist them in gaining the highest salary via negotiation as possible, regardless as to how many qualified applicants 

were referred.”
42 Veteran Hiring in the Civil Service: Practices and Perceptions

Chapter Five: Restrictions on Hiring Retired Service Members into the Department of Defense 

DELEGATION OF THE WAIVER AUTHORITY

While the DoD law explicitly moved the final waiver authority for competitive service positions 

from the DoD departments to OPM, and the legislative history indicated that Congress 

intended that the Secretary’s approval be separate from the approval of the CSC (later OPM), 

OPM delegated this authority to DoD in 1979. The 1979 Federal Register notice gives no 

explanation of the reason behind OPM’s decision and merely states that with respect to the 

180-day rule, “Prior OPM approval on competitive jobs is removed.” The Federal Personnel 

Manual (FPM) Bulletin on this subject issued at the time repeats the words providing the 

delegation, but adds no explanation of OPM’s reasoning other than the overarching goal of 

decentralization.173 There was no expiration date placed on this delegation of authority. 174

We asked OPM to explain its reason for delegating to DoD the authority to immediately hire 

retired military (which P.L. 88-448 removed from DoD jurisdiction and placed instead with 

CSC/OPM). We also asked OPM to tell us if it believed that such a delegation to DoD comports 

with the intent of the statute, and if so, why it had reached this conclusion. However, OPM 

declined to discuss the reasoning behind its delegation of authority to DoD.175

The authority to grant such a waiver has been re-delegated within DoD by a DoD policy. For 

SES and equivalent senior expert positions, the selecting official has the authority to grant 

the waiver. This means that he or she is giving permission to himself or herself to make the 

appointment.176

OPM must approve an individual’s entry into the SES, so there will be some external assurances 

that such an individual is qualified for employment at the executive level.177 However, because 

such recruitment actions are managed by the agency, opportunities for perceived or actual 

manipulation of the recruitment process may remain.178

173 The FPM Bulletin stated, “Prior OPM approval on competitive jobs is removed.” U.S. Office of Personnel 

Management, FPM Bulletin 300-48. 

174 See Delegation of Authority at 44 Fed. Reg. 10042, 10046 (no expiration date mentioned); U.S. Office 

of Personnel Management, FPM Bulletin 300-48 (no expiration date mentioned). Most of the FPM was made 

obsolete by December 31, 1993, with the remainder rendered inoperable by December 31, 1994. See 59 Fed. Reg. 

66629 (explaining that the majority of the FPM was subject to “sunset” in 1993, with some portions remaining in 

effect for another year to permit time to establish regulations and manuals necessary in the absence of the FPM).

175 OPM Response to MSPB Second Questionnaire, June 4, 2013. 

176 Department of Defense Instruction, Employment of Retired Members of the Armed Forces, No. 1402-01, 

Sept. 9, 2007, § 5.1. 

177 All SES candidates must have their qualifications certified by a Qualifications Review Board (QRB) before 

being appointed as career members of the SES. www.opm.gov/policy-data-oversight/senior-executive-service/

selection-process/#url=Qualifications-Review-Board. 

178 See U.S. Office of Personnel Management, Guide to Senior Executive Service Qualifications, at 6, available at 

http://www.opm.gov/policy-data-oversight/senior-executive-service/reference-materials/guidetosesquals_2012.pdf

(explaining that the hiring agency chooses the selection method, advertises the position, evaluates each candidate’s 

qualification, and selects a candidate. The agency then “forwards the candidate’s application” to OPM for 

consideration by an OPM-administered QRB).
A Report by the U.S. Merit Systems Protection Board 43

Chapter Five: Restrictions on Hiring Retired Service Members into the Department of Defense

For positions equivalent to the GS-14 and GS-15 levels, review cannot be delegated below the 

Major Commands or Deputy Directors of the sub-agency.179 While this is not the same as 

having an external agency such as OPM reviewing the waiver request, it is preferable to giving 

the selecting official the authority to waive the hiring prohibition.

For positions below GS-14 and all wage grade positions, the DoD policy does not limit how 

low the authority can be re-delegated, only that it be “appropriate to meet operational and 

organizational needs.”180 This condition is remarkably subjective and depends heavily on the 

integrity and commitment of those making the delegation decisions. If Congress in 1964 had 

such trust and faith in DoD managers, it is unlikely that the Gilpatric memorandum would 

have become law in the first place. 

THE NATIONAL EMERGENCY

The statute allows for the hiring of retired service members in less than 180 days of their 

retirement without an assessment of the particular hiring case when a state of national 

emergency exists. In its response to a draft copy of this report, OPM repeatedly referred to 

the national emergency exception as a “flexibility” and indicated that its use by DoD was 

optional.181 The statute does not expressly state whether the emergency declaration permits

or if it mandates that DoD bypass the 180-day restriction on hiring.182 While noting OPM’s 

position, because the Board is prohibited from expressing an advisory opinion on matters that 

may come before it in the future, we take no position at this time as to whether the statute 

permits or mandates that the exception be used.183

The 180-day rule was suspended in September of 2001 because of the terrorist attacks on 

September 11th.184 The suspension of the 180-day rule remains in place to this day. As 

explained in the President’s most recent notification of the extension of the state of national 

emergency: 

179 Department of Defense Instruction, Employment of Retired Members of the Armed Forces, No. 1402-01, 

Sept. 9, 2007, § 5.2. 

180 Department of Defense Instruction, Employment of Retired Members of the Armed Forces, No. 1402-01, 

Sept. 9, 2007, § 5.3.

181 A copy of OPM’s full reply is in Appendix B.

182 We asked OPM if it had an opinion on whether the statute mandates or merely confers discretion to 

bypass the waiver process, and OPM stated that it was “an interesting question” that it declined to answer. OPM 

Response to MSPB Second Questionnaire, June 4, 2013. The language in the statute also does not state if the 

special pay tables provision permits or mandates that the 180-day rule not apply. See 5 U.S.C. § 3326.

183 See 5 U.S.C. § 1204(h) (prohibiting the Board from expressing an advisory opinion).

184 Suspension of the need for a waiver based upon a state of national emergency is available at http://cpol.army.

mil/library/nonarmy/dod_092401.html. 
44 Veteran Hiring in the Civil Service: Practices and Perceptions

Chapter Five: Restrictions on Hiring Retired Service Members into the Department of Defense 

Because the terrorist threat continues, the national emergency declared on 

September 14, 2001, and the powers and authorities adopted to deal with that 

emergency must continue in effect beyond September 14, 2013. Therefore, I 

am continuing in effect for an additional year the national emergency that was 

declared on September 14, 2001, with respect to the terrorist threat.185

Whether a state of national emergency exists, and for how long, are questions in which the 

Board has no role.186 Nevertheless, such a declaration has a real effect on a civil service law that 

was passed for the express purpose of fostering the health of the civil service. 

SURVEY DATA FOR THE 180-DAY RULE

We cannot determine the extent of any connection between the inactivation of the 180-day 

rule and employee perceptions of inappropriate favoritism towards veterans in DoD. However, 

we note that the Gilpatric memorandum and the hearing transcripts for 180-day law make 

clear that concerns about perceptions or the reality of such favoritism were the reasons the 

rule was originally issued by DoD and why the law was subsequently enacted by Congress.187

We recently conducted a study about favoritism, titled Preserving the Integrity of the Federal 

Merit Systems:  Understanding and Addressing Perceptions of Favoritism. The survey (FMSS) 

used to support this study did not mention the hiring of retired military service members but 

asked Federal employees the following open-ended question: If you have witnessed favoritism 

in your organization within the past two years, what are the most common ways that supervisors 

demonstrate favoritism? 

Some of the narrative responses that we received alleged that job descriptions were being 

written specifically for retiring members of the armed forces, that the retired military were 

being hired by their friends without regard for which applicant was best qualified, and that there 

was a repeated pattern of a person being in the work unit as an active military service member 

on a Friday and reporting as a civilian the following Monday—timing that appeared very 

suspicious to the respondents and implied that the job had been held for the military retiree. 

Some respondents expressed concerns that the hiring of retired military into highly-graded 

positions has become so pervasive that it has created a “glass ceiling” for career employees.188

185 President Barack Obama, Continuation of the National Emergency With Respect to Certain Terrorist Attacks, 

September 10, 2013, available at 78 Fed. Reg. 56581 (Sept. 12, 2013).

186 DoD has informed Congress that it estimates the Global War on Terror will last at least another 10-20 

years. Charlie Savage, “Debating the Legal Basis for the War on Terror,” New York Times, May 16, 2013.

187 Hearings Before the Committee on Post Office and Civil Service, H.R. 7381, Jul.-Aug. 1963.

188 A non-veteran is less likely to be a supervisor or manager in a DoD agency compared to a non-DoD agency. 

While 11 percent of non-veterans in DoD are in civilian supervisory and managerial positions, 17 percent of 

veterans are in such positions. In the non-DoD Federal agencies, an average of 13 percent of non-veterans are in 

such positions, and 14 percent of veterans are in such positions. U.S. Office of Personnel Management, CPDF, FY 

2012. 
A Report by the U.S. Merit Systems Protection Board 45

Chapter Five: Restrictions on Hiring Retired Service Members into the Department of Defense

Similarly, in our FOCS, we asked the HR respondents who reported that they had witnessed 

favoritism in their agency to “briefly describe the most common ways that supervisors 

demonstrate favoritism.” The responses we received indicated that some HR specialists, much 

like the Federal employees surveyed in the FMSS, believed the same concerns that led to the 

180-day waiting period being created in the first place had become a problem once again (or 

never ceased to be a problem). For instance, some respondents stated they had observed the 

writing of positions descriptions (PDs) with a particular retiring officer in mind and the reannouncing of vacant positions that already had highly-qualified applicants in order to delay 

the process until a retiring service member was available for selection.

Perceptions that managers are writing PDs for their retiring friends (or even for themselves as 

their own retirement approaches) have led to the term “no Colonel left behind” being added 

to the Federal HR lexicon.189 We heard this phrase used on many occasions before the FOCS 

was conducted, and on this survey it was used once again by the HR respondents. One HR 

respondent described the situation as follows:

Due to [the] National Emergency, the 180-day waiting period for hiring retired 

military has been lifted[. T]his has caused the most favoritism in hiring and payout 

of [multiple] incentives. Going on terminal leave on Friday and [being] hired as 

a civilian on Monday [has become common] for many high level management 

positions. 190

We asked OPM if it had performed any oversight of how the delegated authority had been 

used, and OPM replied that it had no records of its actions prior to 2001 and had performed 

no oversight since then due to the national emergency.191

We requested information from DoD to see if these perceptions of individuals were supported 

by hiring data. As explained below, we found there was a basis for reasonable observers to 

become suspicious of DoD’s hiring practices concerning recently retired service members, 

although the data cannot establish impropriety in specific cases.

189 The DoD individuals who were appointed within 180-days or less from their retirement dates were, in 

comparison to their representation in the larger military, disproportionately retired officers. Overall, in 2011, 

15 percent of the active military were in the officer corps, 1 percent were warrant officers, and 83 percent were 

enlisted. (Total does not equal 100 due to rounding). However, in the 180-day appointee population for FY 

2002-2012, 23 percent were officers, 4 percent were warrant officers, and 73 percent were enlisted. With respect 

to “no Colonel left behind,” in 2011, 3 percent of the military were at a rank of O5 or O6 (Lieutenant Colonel 

and Colonel, respectively), while 15 percent of the 180-day appointees retired from such ranks (10 percent LTC, 

5 percent COL). Military composition data source: Office of the Undersecretary of Defense, Personnel and 

Readiness, Population Representation in the Military Services, 2011, Appendix B at 69, 72, 76, available at http://

prhome.defense.gov/portals/52/Documents/POPREP/poprep2011/). 

190 Terminal leave occurs when a service member takes the leave that he or she has earned from the military 

before the effective date of the retirement. See 5 U.S.C. § 5534a. If the individual is working in the same office 

from which he retired, this use of leave may be a particular sore point for some respondents, as the individual is 

collecting pay for working and pay for being on leave at the same time from the same employer. 

191 OPM Response to MSPB Second Questionnaire, June 4, 2013.
46 Veteran Hiring in the Civil Service: Practices and Perceptions

Chapter Five: Restrictions on Hiring Retired Service Members into the Department of Defense 

According to the database provided by DoD, from the start of FY 2002 to the end of FY 2012, 

DoD hired 40,449 individuals within 180 days or less of their retirement from active duty 

(“180-day veterans”). In this same period, DoD hired a total of 480,174 full-time, permanent, 

external employees.192 

To examine the “glass ceiling” question raised by some respondents, we also investigated 

the positions being filled by these military retirees. In the General Schedule, from FY 2002-

FY 2012, less than a third of external hires in DoD were at grades GS-11 through GS-15. 

However, in the population of 180-day veterans hired during the same period, more than half 

of the GS hires were for positions graded GS-11 through GS-15.193 Because many of these 

military retirees would likely have 20 or more years of service, it is reasonable that they would 

be candidates for the higher-graded positions more often than entry- or journeyman-level 

positions.194 Yet, the perceived consequence—a “glass ceiling”—remains a serious problem 

even if there is no impropriety behind it. A lack of advancement opportunities, whether actual 

or merely perceived, can make it more difficult for an agency to attract and retain qualified 

candidates at the entry- and journeyman-level.195

Perceptions that the system has been manipulated to favor the retired military may also be 

shaped by the extent to which these 180-day veterans are placed in civilian positions with little 

or no break in service following their active duty service. Between September 14, 2001 and 

January 28, 2013, DoD hired 41,630 180-day veterans. As shown in Figure 6, below, more 

than one-third of these appointments took effect prior to the effective date of the individuals’ 

retirement from the armed forces and more than half occurred within a pay period or less from 

the date of retirement from the armed forces.196

192 “External” employees do not include transfers or reinstatements of individuals who have already earned 

career or career-conditional status in the civil service. MSPB uses the full-time permanent workforce for its usual 

measurements of the Federal workforce. However, we did not ask DoD to limit its database in this manner.

193 The percentage of external new hires into GS-11 through GS-15 positions in DoD was 32.7% overall and 

52.3% for the 180-day veterans from FY 2002 to FY 2012. Seventy percent of the 180-day veterans were hired into 

the General Schedule.

194 U.S. Secretary of Defense, Personnel & Readiness, at http://militarypay.defense.gov/retirement/ (explaining 

that in the absence of a disability, 20 years or more of service is typically required to qualify for retirement).

195 See U.S. Merit Systems Protection Board, Preserving the Integrity of the Federal Merit Systems:  Understanding 

and Addressing Perceptions of Favoritism, at 52 (explaining that survey data show favoritism can have a negative 

effect on recruitment and retention).

196 The appointment prior to retirement is likely an effect of the use of terminal leave, in which a service 

member takes the leave that he or she has earned from the military immediately before the effective date of the 

retirement. The extent to which the appointments occurred prior to retirement varied by component: Air Force 

(43.5%), Army (36.5%), Navy (35.0%), and DoD Other (29.8%). 
A Report by the U.S. Merit Systems Protection Board 47

Chapter Five: Restrictions on Hiring Retired Service Members into the Department of Defense

Figure 6: Time Period Between Military Retirement and Civilian Appointment197

37%

7% 14%

41%

Before Retirement

0-14 Days After

15-30 Days After

31-180 Days After

That so many retiring service members were able to be appointed on or before their 

retirement dates is not necessarily proof that the positions were deliberately being held 

vacant pending the availability of the service members. These individuals may have been 

retirement-eligible for some time and waited for a job offer before submitting their paperwork 

to leave military service. 

In any event, when there is so little time between an individual’s separation from the military 

and the start of a civilian career, and no review of whether improprieties occurred such as 

holding the position open for the military retiree, it may create suspicion. 

Supervisors and other agency officials need to understand that, even if the 180-day prohibition 

is temporarily suspended, the crafting of PDs to favor an individual or delaying recruitment in 

order to wait for the availability of an individual are PPPs under 5 U.S.C. § 2302(b)(6), which 

the President has not ordered waived.

Management officials are not allowed to “grant any preference or advantage not authorized 

by law, rule, or regulation to any employee or applicant for employment (including defining 

the scope or manner of competition or the requirements for any position) for the purpose 

of improving or injuring the prospects of any particular person for employment[.]”198 Thus, 

even if 5 U.S.C. § 3326 does not prohibit hiring recently retired service members, the conduct 

described by respondents in both the FMSS and FOCS is still prohibited by law. 

197 Data supplied by the Department of Defense. Total does not equal 100% due to rounding.

198 5 U.S.C. § 2302(b)(6).
48 Veteran Hiring in the Civil Service: Practices and Perceptions

Chapter Five: Restrictions on Hiring Retired Service Members into the Department of Defense 

As stated earlier, a perception is not necessarily proof that an event occurred, but it can be a 

warning sign that warrants investigation to ensure that either: (1) the conduct is stopped if it 

has been happening; or (2) the environment that has led to faulty perceptions is addressed to 

reduce such harmful impressions. Respondents in three different surveys reported perceptions 

of inappropriate actions by DoD managers to provide advantages to veterans not permitted by 

law, and DoD’s own hiring data indicates there may be a basis for some of these perceptions.199

RECOMMENDATIONS FOR THE FUTURE OF THE 180-DAY RULE

The concerns expressed in both the FMSS and FOCS are precisely the same issues that the 180-

day waiver requirement was intended to address when Congress enacted it into law in 1964.200

Fifty years later, reports of the same problems persist. 

When we asked the HR respondents in the FOCS what could be done to decrease the practice 

of favoritism, responses again reflected the respondents’ concerns about the drafting of PDs 

in a manner designed to benefit retiring military and the holding open of vacancies pending 

the eligibility of a retiring service member to apply. Some HR staff called for the reinstitution 

of the 180-day waiting period for the express purpose of addressing these issues, which may 

indicate that they believed the requirement for a waiver was successful in limiting abuses when 

the requirement was in place. 

We respectfully recommend that Congress revisit 5 U.S.C. §  3326. The data from three 

different surveys and the hiring data provided by DoD appear to indicate that the problems 

that section 3326 was intended to address remain serious concerns. If Congress is persuaded 

that the health of the civil service must be protected through some level of additional review 

before a DoD official hires a military service member at the same approximate time as his or 

her retirement from service, the law should be amended.201

In particular, the ongoing use of the national emergency provision for at least 13 years (more 

than a quarter of the life of the law) may be a concern because of its cumulative effect over time. 

If Congress determines that the 180-day rule should not be in effect as long as the United States 

199 The random samples for the MPS, FMSS, and the FOCS were drawn separately. This means that a few 

individuals may have been invited to respond to more than one survey. We estimate that the overlap caused by a 

random sampling should be relatively small—approximately 1 percent. Such overlap is common and acceptable 

when scientists study multiple surveys, and does not affect the ability of a sample to accurately reflect the views of 

the larger population it represents.

200 The 2010 MPS did not ask about retiring members of the armed forces and provided no open-ended 

questions in which respondents could discuss such a topic. 

201 The law addresses appointments in “the period of 180 days immediately after [the veteran’s] retirement” 

and does not expressly state what should occur for appointments prior to retirement. 5 U.S.C. § 3326. Given that 

more than a third of such appointments are beginning prior to retirement from military service, we recommend 

the language of the statute be amended to address the periods immediately before and following the veteran’s 

retirement.
A Report by the U.S. Merit Systems Protection Board 49

Chapter Five: Restrictions on Hiring Retired Service Members into the Department of Defense

faces any terrorist threats, we must consider the possibility that the law has become obsolete.202

If Congress desires that the law have effect, the national emergency provision may need to be 

removed or rephrased in a more limited way. 

In its reply to a draft copy of this report, DoD indicated that it continues to support the 

national emergency exception as currently codified. DoD also stated its belief that, at the 

least, the Secretary of Defense should have “the discretion to utilize the national emergency 

exception on a DoD-wide or targeted basis when it is determined necessary for accomplishing 

the Department’s mission.”203 While a targeted use of the emergency exception for specific 

positions or missions would be more appropriate than applying the exception to the full range 

of defense agencies for a period of over 13 years, we remain concerned that such exceptions 

could be vulnerable to abuse. In order to protect the merit systems, it would be best if any 

inactivation of the waiver requirement be narrow and brief. The larger the number of positions 

excepted from review, and the longer the period in which waivers are not required, the greater 

the scope of the potential harm. 

We also recommend that Congress examine the issue of OPM’s delegation of the waiver 

authority. While we have not used the studies function to issue a determination as to whether 

OPM had the authority to delegate its responsibilities regarding the waiver authority, we 

have concerns about the effect such a delegation has on the health of the civil service and the 

opportunities it may create for the commission of PPPs.204

We believe it is in the best interest of the civil service and the Nation it serves for there to be 

some mechanism by which waivers may be obtained to enable DoD to hire recently retired 

(or soon to be retired) service members. The retiring service members may have valuable 

skills that cannot be easily found in the applicant pool or may be substantially more qualified 

than other candidates. However, opportunities for favoritism need to be restricted to ensure 

that: (1) the duties of the position are needed for the mission; and (2) the person selected 

is the candidate who is most likely to excel in the position. Additionally, Federal employees 

should not be given reason to believe that their advancement cannot be earned on merit. 

Lastly, it is crucial that the American people have trust that the civil service does not permit 

money to be wasted or important work left undone so that Government officials can abuse the 

system to favor their friends. Such perceptions do their own harm, apart from that caused by 

mismanagement of human capital.

202 President Barack Obama, Continuation of the National Emergency With Respect to Certain Terrorist Attacks, 

September 10, 2013, available at 78 Fed. Reg. 56581 (Sept. 12, 2013) (explaining that the national emergency 

declaration will remain in effect for at least another year). 

203 A copy of DoD’s full reply is in Appendix C.

204 While we have not reached a conclusion about the validity of OPM’s delegation of the waiver authority, we 

note that the validity of the delegation is an open question. Under the CSRA, OPM’s director has the authority 

to “delegate, in whole or in part, any function vested in or delegated to the Director.” 5 U.S.C. § 1104. However, 

“[i]t is a basic principle of statutory construction that . . . where there is no clear intention otherwise, a specific 

statute will not be controlled or nullified by a general one, regardless of the priority of enactment.” Radzanower 

v. Touche Ross & Co., 426 U.S. 148, 153 (1976) (internal punctuation omitted); see Carney v. Board of Governors of 

Federal Reserve System, 64 M.S.P.R. 394, 396 (1994). 
50 Veteran Hiring in the Civil Service: Practices and Perceptions

Chapter Five: Restrictions on Hiring Retired Service Members into the Department of Defense 

The law establishing the 180-day rule stated that there would be an outside review of such 

hiring actions by the CSC, and later by OPM when it inherited a portion of the duties that had 

belonged to the CSC. While OPM’s review of DoD’s hiring actions is not the only possible 

means by which to ensure the integrity of the system, that approach is far better than the 

delegation and re-delegation of the review authority into the hands of the very people upon 

whom it was meant to serve as a check.205 We cannot endorse such a process and strongly 

advise against it. We ask Congress, OPM, and DoD to recognize the discouraging effects of 

promising oversight in statute while providing little or no oversight in practice.

205 Congress may grant a power to an agency head while restricting its redelegation. The maxim is “delegata 

potestas non potest delegari—a delegated authority cannot be redelegated.” This principle of law applies to situations 

in which “Congress delegated to a high executive officer the responsible duties. . . in reference to a very important 

[ ] matter, and for him in turn to redelegate the same is a failure to comply with the mandate of the legislature.” 

United States v. Gilson Bros., 20 C.C.P.A. 117, 123 (Court of Custom and Patent Appeals 1932). See United States 

v. Tower & Sons, 14 Ct. Cust. 421 (Ct. Cust. App. 1927) (holding that the Secretary of the Treasury did not have 

the power to delegate a particular power to a special agent); Whaley v. State, 168 Ala. 152 (Ala. 1909) (explaining 

that “[a]mong the principal axioms of jurisprudence, political and municipal, is to be found the principle that an 

agent unless expressly empowered, cannot transfer his delegated authority to another, more especially when it rests 

in a confidence, partaking the nature of a trust, and requiring for its due discharge understanding, knowledge, and 

rectitude”).
A Report by the U.S. Merit Systems Protection Board 51

“For it has been said, all that a man hath will he give for his life; and while all contribute of their substance, the 

soldier puts his life at stake, and often yields it up in his country’s cause. The highest merit, then, is due to the 

soldier.”

—Abraham Lincoln206

SUMMARY OF VETERANS’ HIRING AUTHORITIES 

FINDINGS AND RECOMMENDATIONS

One role of the MSPB is to study the civil service’s merit systems and advise Congress and 

the President of its findings. However, the extent to which the law should give a preference 

based on military service is a public policy question that remains solely with Congress and 

the President. Accordingly, we have made no recommendations for specific changes to the 

veterans’ appointment authorities, but rather discuss the system as it exists today. 

Over the years, Congress has enacted many provisions designed to promote the employment 

and retention of veterans and preference eligibles in the Federal Government. For example, 

the longstanding principle of veteran’s preference in examining is now accompanied by veteran 

hiring authorities such as VEOA, VRA, and DVA. Individually, all of these provisions were 

designed and implemented to achieve a particular purpose. Collectively, they make Federal 

recruitment a complex process affecting the health of the civil service by inviting opportunities 

for misperceptions, confusion, or intentional abuses.207 

The more complicated the laws, the more opportunities there are for agencies to make mistakes, 

veterans to misunderstand their rights, and observers to assume that something improper 

has occurred. It may be easier to hide inappropriate conduct if the rules are perceived as 

so convoluted that it is possible for a rational person to believe a manager’s claim that the 

law permitted a preference that it does not actually allow. Additionally, a complicated system 

places an extra burden on those charged with managing that system, especially in a time of 

limited resources where job applications may abound but employees to assess them are scarce. 

The challenges and burdens of managing this system fall particularly hard upon OPM. Many 

of the requirements for veterans’ preference are spelled out in a variety of different laws with 

varying degrees of clarity. OPM has the responsibility to write regulations and policies to 

206 “A Speech by the President, New York Times, Mar. 22, 1864, available at http://www.nytimes.

com/1864/03/22/news/a-speech-by-the-president.html. 

207 We sent inquiries to OPM and DOL regarding the extent to which the laws may also confuse veterans 

about their rights. DOL did not respond and OPM’s response indicated that it had no data to provide in this area. 

OPM Response to MSPB First Questionnaire, Apr. 2, 2013.

Chapter Six: Findings and 

Recommendations
52 Veteran Hiring in the Civil Service: Practices and Perceptions

Chapter Six: Findings and Recommendations

give effect to these laws and to form a cohesive system, a responsibility further complicated 

by the existence of agency-specific personnel systems and rules over which OPM has little 

or no control. Just as the system of hiring preferences does not lend itself to short or easy 

explanations, a system this detailed and complex cannot be easy to manage or update as case 

law evolves or new statutes are enacted. 

If Congress chooses to examine hiring laws in the future, we recommend that it consider the 

benefits of creating a simpler system that would be easier to manage, apply, and explain to 

those who will be affected by the decisions made under that system.

In the meantime, we recommend that agencies make every effort to explain to employees at 

all levels, whether veterans or non-veterans, what the rules are and why certain decisions were 

made. Education of supervisors and HR staff may reduce errors, transparency may reduce 

opportunities for abuse, and openness may reduce misperceptions. 

SUMMARY OF THE 180-DAY HIRING PROHIBITION 

FINDINGS AND RECOMMENDATIONS

The data provided by DoD show that since 2001 there have been over 41,000 appointments of 

retired service members for whom a waiver would have been required if the 180-day rule was 

in effect. The data also show that a majority of the hires were to the upper-level grades and 

that for many of these appointments, there was little or no break in time between the military 

and the civilian service.

Respondents in three different surveys indicated that inappropriate favoritism towards 

veterans was a problem. In the surveys that permitted respondents to identify the source of 

the problem, some respondents alleged that there had been improper manipulations of the 

system for the purpose of benefiting retiring military members. 

We have concluded that the law prohibiting the hiring of recently retired veterans has two 

major problems and several additional areas in need of attention. First, the national emergency 

exception has essentially rendered the law meaningless in a post-9/11 world. Second, the 

delegation and re-delegation of the waiver may be contrary to Congress’ expressed intent and, 

when in use, may greatly weaken the law’s effectiveness.

Additionally, there are word choices in the statute that could be clearer in order to ensure that 

the statute: (1) applies to those whose retirement from military service is pending; and (2) 

addresses whether the exceptions from the 180-day rule give DoD the option to hire or if they 

require that DoD disregard the retirement status issue entirely.
A Report by the U.S. Merit Systems Protection Board 53

Chapter Six: Findings and Recommendations

We respectfully recommend that Congress revisit 5 U.S.C. §  3326. If Congress finds there 

is no longer a need for a restriction on the process by which DoD appoints recently retired 

military service members, then the law should be repealed. If, however, like some of our 

survey respondents and the Congress of 1964, Congress remains concerned that inappropriate 

favoritism by manipulating positions and recruitment activities will occur in the absence of 

oversight, then the law could be strengthened by amending it in two ways.

First, we recommend that Congress examine whether the effect of the national emergency 

exception in the 21st century is consistent with Congress’s goals for the merit systems. Second, 

we recommend that Congress consider what role it wants OPM to have in the waiver process 

and ensure that the statutory language reflects that intent. If Congress finds it acceptable for 

DoD to perform the oversight function, we recommend that the law contain a restriction on 

the level to which this authority can be re-delegated and a requirement that the official granting 

a waiver cannot be the same person as the official who requests that waiver.

Until such time as the law is amended or repealed, we recommend that OPM and DoD reexamine how DoD has used its delegated authority and the emergency exception to the 180-

day waiver. The restrictions of that law—when in effect—do not prevent the hiring of retired 

service members; they merely ensure review of the hiring action to confirm that the selection 

was based on merit and not favoritism. Such measures may help not only to prevent actual 

favoritism but also to reduce perceptions that favoritism has prevailed over merit. If OPM 

declines involvement, one possible solution may be for DoD to independently reinstate the 

Gilpatric memorandum, a copy of which is in Appendix D of this report.208

If OPM and/or DoD conclude that the law has become unnecessary, one or both agencies 

should ask Congress to repeal it. But, as long as the 180-day rule is in the law, we recommend 

that it be given a practical effect.

208 The extent to which reinstatement of the Gilpatric memorandum would comport with section 3326 is 

a decision that must be made by DoD and its legal advisors, as the Board is prohibited from issuing an advisory 

opinion. See 5 U.S.C. § 1204(h). The outcome of such an analysis would likely be heavily dependent on whether 

the law is read as permitting or mandating that DoD disregard the 180-day rule during the national emergency. 

A Report by the U.S. Merit Systems Protection Board 55

Appendix A: Discussion of the Response 

by the Office of Personnel Management

As a result of issues raised in OPM’s reply we made modifications to this report; but, as explained 

below, for some issues raised by OPM we determined that changes were not warranted. 

In its reply, OPM expressed concern that our earlier draft did not provide an adequate discussion 

of how veterans’ preference applies in the excepted service and instead focused too heavily on 

the issue of those situations where the nature of the position may limit the administrative 

feasibility of the application of preference. We have modified the report to provide a more indepth discussion of the application of veterans’ preference in the excepted service.

However, we found some of OPM’s other comments less persuasive. For example:

1. OPM objected to what it perceived as a call for sweeping changes to the rules governing 

hiring and particularly veterans’ preference based upon 11 percent of survey respondents 

reporting negative perceptions regarding the treatment of veterans. OPM is mistaken; 

the report does not ask for sweeping changes to veterans’ preference or an overhaul of 

the hiring system. Rather, the report describes the system as it currently functions for 

readers to assess the complexities of the process for themselves. The survey data serves 

to add another layer of information, namely, how employees perceive that system. Our 

recommendation regarding changes to the rules for veterans’ preference is that if Congress 

opts to make changes to the laws in the future, it may be beneficial for Congress to consider 

how complex the system has become and the potential advantages of simplifying the system.

Additionally, OPM noted that while 4.5 percent of respondents perceived that veterans 

were denied their preference rights, 6.5 percent perceived inappropriate favoritism 

towards veterans. OPM stated that these seemingly opposing views made it difficult to 

draw clear conclusions from the survey data. However, the finding that more than one out 

of every ten employees in a workforce of approximately 1.7 million people has a negative 

perception regarding the treatment of veterans remains pertinent, even if the nature of that 

negativity may differ.
56 Veteran Hiring in the Civil Service: Practices and Perceptions

Appendix A: Discussion of the Response by the Office of Personnel Management

2. OPM expressed concern that it may be inappropriate for the Board to comment on 5 U.S.C. 

§ 3326 because it interacts with a declaration of a National emergency. The report clearly 

states that whether a state of national emergency exists, and for how long, are questions in 

which the Board has no role. Nevertheless, such a declaration has a real effect on a civil 

service law that was enacted for the express purpose of fostering the health of the civil service. 

Title 5, section 1204(a)(3) authorizes the Board to “conduct, from time to time, special 

studies relating to the civil service and to other merit systems in the executive branch.”209

We believe that studying the effect of 5 U.S.C. § 3326 on the civil service and informing 

Congress and the President of our findings is fully consistent with our statutory powers 

and Congress’s intent when establishing the Board as a bi-partisan, independent agency 

with the responsibility to perform studies and report upon its findings.

209 The Board is also required, by 5 U.S.C. § 1206, to annually review and analyze OPM’s significant actions 

and report its findings to Congress and the President.
A Report by the U.S. Merit Systems Protection Board 57

Appendix B: Response by the Office 

of Personnel Management
58 Veteran Hiring in the Civil Service: Practices and Perceptions

Appendix B: Response by the Office of Personnel Management
A Report by the U.S. Merit Systems Protection Board 59

Appendix B: Response by the Office of Personnel Management

A Report by the U.S. Merit Systems Protection Board 61

Appendix C: Response by the 

Department of Defense
62 Veteran Hiring in the Civil Service: Practices and Perceptions

Appendix C: Response by the Department of Defense
A Report by the U.S. Merit Systems Protection Board 63

Appendix C: Response by the Department of Defense
64 Veteran Hiring in the Civil Service: Practices and Perceptions

Appendix C: Response by the Department of Defense
A Report by the U.S. Merit Systems Protection Board 65

GILPATRIC MEMORANDUM

Appendix D: Department of Defense 

Restriction Memorandum and Law
66 Veteran Hiring in the Civil Service: Practices and Perceptions

5 U.S.C. § 3326—APPOINTMENTS OF RETIRED MEMBERS OF THE 

ARMED FORCES TO POSITIONS IN THE DEPARTMENT OF DEFENSE 

(a) For the purpose of this section, “member” and “Secretary concerned” have the meanings 

given them by section 101 of title 37. 

(b) A retired member of the armed forces may be appointed to a position in the civil service 

in or under the Department of Defense (including a nonappropriated fund instrumentality 

under the jurisdiction of the armed forces) during the period of 180 days immediately after his 

retirement only if— 

(1) the proposed appointment is authorized by the Secretary concerned or his designee 

for the purpose, and, if the position is in the competitive service, after approval by the 

Office of Personnel Management; 

(2) the minimum rate of basic pay for the position has been increased under section 5305 

of this title; or 

(3) a state of national emergency exists. 

(c) A request by appropriate authority for the authorization, or the authorization and approval, 

as the case may be, required by subsection (b)(1) of this section shall be accompanied by a 

statement which shows the actions taken to assure that— 

(1) full consideration, in accordance with placement and promotion procedures of the 

department concerned, was given to eligible career employees; 

(2) when selection is by other than certification from an established civil service register, 

the vacancy has been publicized to give interested candidates an opportunity to apply; 

(3) qualification requirements for the position have not been written in a manner designed 

to give advantage to the retired member; and 

(4) the position has not been held open pending the retirement of the retired member. 
A Report by the U.S. Merit Systems Protection Board 67

Because category rating is a flexible system, there is no single way to determine the categories. 

This means that agencies have the responsibility to consider what structure for the categories 

is most likely to result in the referral of a suitable number of candidates with the highest 

probability to be the greatest assets to the Government in the positions. 

An agency can place the entire definition of the category in one place. For example:

Highly Qualified

Senior Specialist in an agency headquarters office with experience 

writing regulations or agency policy on staffing, downsizing, 

realignments, classification, or compensation.

Qualified Specialist with operations experience applying policies in staffing, 

downsizing, realignments, classification, or compensation.*

Or, the agency can identify a proficiency level for different aspects of the job criteria and then 

create a formula that combines the criteria ratings to create the category rating. For example, 

a single skill, knowledge, or ability (KSA) could be scored like this:

Proficiency Level Proficiency Level Definition

5 Communicates complex ideas clearly.

3 Communicates moderately complex ideas clearly.

1 Communicates basic ideas clearly.**

* Modified from U.S. Office of Personnel Management, Delegated Examining Operations Handbook, at 103, 

available at www.opm.gov/deu.

** Modified from U.S. Office of Personnel Management, Delegated Examining Operations Handbook, at 104, 

available at www.opm.gov/deu.

Appendix E: Structuring Categories 

for Category Rating
68 Veteran Hiring in the Civil Service: Practices and Perceptions

Appendix E: Structuring Categories for Category Rating

The requirements to be placed in the highly qualified category then could be, for example, 

a score of 5 in at least half of the KSAs and no score below 3. If a particular KSA is more 

important than other KSAs, that can be reflected in the score required for that specific criterion 

to meet each category.210 

If the top category does not have three or more candidates, agencies have the option to merge 

categories.211 For this reason, it is acceptable for an agency to make the top category challenging. 

However, the second category should also be composed of criteria that would enable a person to 

do the job, because, as stated before, the criteria to enter a category cannot be modified around 

the candidate pool.212 Agencies must fully specify the category rating plan before announcing the 

position.

213 The plan can have as many different levels as the agency deems appropriate for the 

recruitment strategy, and multiple levels can be merged as long as there are still positions to be 

filled and there are less than three candidates remaining in the categories above the one being 

merged. However, while categories can be merged, they cannot be divided if there are more 

candidates than the agency would like in the top category. For this reason, we recommend 

that agencies operate on the side of caution and create multiple categories before announcing a 

vacancy, as long as there are still meaningful differences between the quality levels.214

210 See U.S. Office of Personnel Management, Delegated Examining Operations Handbook, at 105, available 

at www.opm.gov/deu.

211 U.S. Office of Personnel Management, Delegated Examining Operations Handbook, at 107, available at 

www.opm.gov/deu.

212 U.S. Office of Personnel Management, Delegated Examining Operations Handbook, at 101, available at 

www.opm.gov/deu; see 5 C.F.R. § 337.303(c).

213 U.S. Office of Personnel Management, Delegated Examining Operations Handbook, at 101, available 

at www.opm.gov/deu (“Quality categories must be established and defined by the employing agency prior to 

announcing the job.”)

214 U.S. Office of Personnel Management, Delegated Examining Operations Handbook, at 107, available at 

www.opm.gov/deu (explaining that: “There is no limit to the number of times you can merge categories. The 

number of times you can merge categories is restricted only by the number of categories you establish.”)
A Report by the U.S. Merit Systems Protection Board 69

DEFINITION OF VETERAN AND RELATED TERMS (5 U.S.C. § 2108)

For the purpose of this title— 

(1) “veteran” means an individual who— 

(A) served on active duty in the armed forces during a war, in a campaign or expedition 

for which a campaign badge has been authorized, or during the period beginning April 

28, 1952, and ending July 1, 1955; 

(B) served on active duty as defined by section 101 (21) of title 38 at any time in the armed 

forces for a period of more than 180 consecutive days any part of which occurred after 

January 31, 1955, and before October 15, 1976, not including service under section 12103 

(d) of title 10 pursuant to an enlistment in the Army National Guard or the Air National 

Guard or as a Reserve for service in the Army Reserve, Navy Reserve, Air Force Reserve, 

Marine Corps Reserve, or Coast Guard Reserve; 

(C) served on active duty as defined by section 101 (21) of title 38 in the armed forces 

during the period beginning on August 2, 1990, and ending on January 2, 1992; or 

(D) served on active duty as defined by section 101 (21) of title 38 at any time in the 

armed forces for a period of more than 180 consecutive days any part of which occurred 

during the period beginning on September 11, 2001, and ending on the date prescribed 

by Presidential proclamation or by law as the last date of Operation Iraqi Freedom; 

and, except as provided under section 2108a, who has been discharged or released from 

active duty in the armed forces under honorable conditions; 

(2) “disabled veteran” means an individual who has served on active duty in the armed forces, 

(except as provided under section 2108a) has been separated therefrom under honorable 

conditions, and has established the present existence of a service-connected disability or is 

receiving compensation, disability retirement benefits, or pension because of a public statute 

administered by the Department of Veterans Affairs or a military department; 

(3) “preference eligible” means, except as provided in paragraph (4) of this section or section 

2108a (c)— 

Appendix F: Glossary
70 Veteran Hiring in the Civil Service: Practices and Perceptions

Appendix F: Glossary

(A) a veteran as defined by paragraph (1)(A) of this section; 

(B) a veteran as defined by paragraph (1)(B), (C), or (D) of this section; 

(C) a disabled veteran; 

(D) the unmarried widow or widower of a veteran as defined by paragraph (1)(A) of this 

section; 

(E) the wife or husband of a service-connected disabled veteran if the veteran has been 

unable to qualify for any appointment in the civil service or in the government of the 

District of Columbia; 

(F) the mother of an individual who lost his life under honorable conditions while serving 

in the armed forces during a period named by paragraph (1)(A) of this section, if— 

(i) her husband is totally and permanently disabled; 

(ii) she is widowed, divorced, or separated from the father and has not remarried; or 

(iii) she has remarried but is widowed, divorced, or legally separated from her 

husband when preference is claimed; 

(G) the mother of a service-connected permanently and totally disabled veteran, if— 

(i) her husband is totally and permanently disabled; 

(ii) she is widowed, divorced, or separated from the father and has not remarried; or 

(iii) she has remarried but is widowed, divorced, or legally separated from her 

husband when preference is claimed; and 

(H) a veteran who was discharged or released from a period of active duty by reason of a 

sole survivorship discharge (as that term is defined in section 1174 (i) of title 10); 

but does not include applicants for, or members of, the Senior Executive Service, the Defense 

Intelligence Senior Executive Service, the Senior Cryptologic Executive Service, or the Federal 

Bureau of Investigation and Drug Enforcement Administration Senior Executive Service; 

(4) except for the purposes of chapters 43 and 75 of this title, “preference eligible” does not 

include a retired member of the armed forces unless— 

(A) the individual is a disabled veteran; or 
A Report by the U.S. Merit Systems Protection Board 71

Appendix F: Glossary

(B) the individual retired below the rank of major or its equivalent; and 

(5) “retired member of the armed forces” means a member or former member of the armed 

forces who is entitled, under statute, to retired, retirement, or retainer pay on account of service 

as a member. 

HIRING AUTHORITIES

Competitive examining: A process for considering applicants to the competitive service 

under which all qualified U.S. citizens or nationals may apply, including current and former 

employees.215

Veterans Employment Opportunities Act of 1998 (VEOA): An authority that grants the 

right to compete to eligibles or veterans who have been separated from the armed forces under 

honorable conditions after 3 years or more of active service. It applies to positions in the 

competitive service for which candidates are being considered from outside the agency using 

merit promotion procedures.216

Veterans Recruitment Appointment (VRA): An excepted service hiring authority for 

disabled veterans; veterans who served on active duty in the Armed Forces during a war or 

in a campaign or expedition for which a campaign badge has been authorized; veterans who, 

while serving on active duty in the Armed Forces, participated in a United States military 

operation for which an Armed Forces service medal was awarded pursuant to Executive Order 

No. 12985; or recently separated veterans. It applies to positions that are in the competitive 

service prior to the appointment, provided that the grade of the position is no greater than 

GS–11 or its equivalent.217

Thirty Percent Disabled Veteran Authority (30% DVA): An excepted service hiring authority 

for disabled veterans, who have a compensable service-connected disability of 30 percent or 

more, into positions that are in the competitive service prior to the appointment.218

Training Program Certified: A hiring authority for disabled veterans who have satisfactorily 

completed an approved course of training prescribed by the Department of Veterans Affairs 

under chapter 31 of Title 38 of the United States Code. Applies to positions in the competitive 

service that are in the class of positions for which the veteran was trained.219

215 “No person shall be given any appointment in the competitive service unless such person is a citizen or 

national of the United States.” 5 C.F.R. § 7.3 (b). OPM may authorize the appointment of aliens to positions in 

the competitive service in “specific cases” when necessary. 5 C.F.R. § 7.3(c). 

216 5 U.S.C. § 3304(f)(1). 

217 38 U.S.C. §§ 4214(a)(2)(B), 4214(b)(1)(A), 4212(a)(3). 

218 5 U.S.C. § 3112. 

219 5 C.F.R. § 315.604. 
72 Veteran Hiring in the Civil Service: Practices and Perceptions

Appendix F: Glossary

OTHER TERMS USED IN THE REPORT

The definitions below are modified from OPM’s Guide to Processing Personnel Actions Glossary.

Applicant: A person who has asked to be considered for a job with an agency. An applicant 

may be a current employee of the agency, an employee of another agency, or a person who is 

not currently employed by any agency.

Certificate: A list of eligibles submitted to an appointing officer for employment consideration.

Competitive Service: All civilian positions in the Federal Government that are not specifically 

excepted from the civil service by law, executive order, or OPM regulation. Does not include 

positions in the Senior Executive Service.

Disabled Veteran: A person who was separated under honorable conditions from active duty 

in the Armed Forces performed at any time and who has established the present existence of 

a service-connected disability or is receiving compensation, disability retirement benefits, or 

pension because of a public statute administered by the Department of Veterans Affairs or a 

military department.

Excepted Service: Positions excepted from the requirements of the competitive service by 

law, Executive order, or OPM regulation. Does not include positions in the Senior Executive 

Service.

Merit Promotion Procedures (also known as Merit Promotion Program): The system under 

which agencies consider employees and others with status for vacant positions on the basis of 

personal merit.

Preference Eligible: Veterans, spouses, widows, or mothers who meet the definition of 

“preference eligible” in 5 U.S.C. 2108. Preference eligibles are entitled to have 5 or 10 points 

added to their earned score on a civil service examination (see 5 U.S.C. 3309). They are also 

accorded a higher retention standing in the event of a reduction in force (see 5 U.S.C. 3502). 

Preference does not apply, however, to in-service placement actions such as promotions.

Veterans’ Preference: An employee’s category of entitlement to preference in the Federal 

service based on active military service that was terminated honorably:

5-point preference is the preference granted to a preference eligible veteran who does not meet 

the criteria for one of the types of 10point preferences listed below. 

10-point (disability) preference is the preference to which a disabled veteran is entitled. 
A Report by the U.S. Merit Systems Protection Board 73

Appendix F: Glossary

10-point (compensable disability) preference is the preference to which a disabled veteran is 

entitled if he or she has a compensable service-connected disability rating of 10-percent or 

more. 

10-point (30% compensable disability) preference is the preference to which a disabled veteran 

is entitled if he or she is entitled to a 10point preference due to a compensable service-connected 

disability of 30 percent or more. 

10-point (other) preference is the preference granted to the widow/widower or mother of 

a deceased veteran or to the spouse or mother of a disabled veteran. It is called “derived 

preference” because it is derived from the military service of someone else—a veteran who is 

not using it for preference. When the disabled veteran does use the service for preference, then 

the spouse or mother is no longer entitled to preference. 


U.S. Merit Systems Protection Board

1615 M Street, N.W.

Washington, DC 20419

Official Business

Penalty For Private Use $300

UNITED STATES MERIT SYSTEMS PROTECTION BOARD

VETERAN HIRING IN THE CIVIL SERVICE:

Practices and Perceptions

PRSRT STD

U.S. POSTAGE AND FEES PAID

WASHINGTON DC

PERMIT NO. G-113